Re W, DJ

Case [2015] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

W, DJ

[2015] SASC 45

Judgment of The Honourable Justice Gray

25 March 2015

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS

Application for making of a statutory will.  DJW suffered serious injury as a result of complicated birth, leaving him severely physically and intellectually disabled.  A compromise of personal injury proceedings against the hospital was approved in the District Court, resulting in a substantial payment to DJW’s estate and to his mother, who is his primary carer.  DJW’s parents have separated and he has minimal contact with his father.  DJW lives with his mother and sister, and spends time with his half-sister on his mother’s side.  He also has a half-sister, a half-brother and a number of step-siblings on his father’s side, with whom he has no contact.  The parties ultimately reached a compromise and agreed on the terms of a draft will. 

Whether DJW lacks testamentary capacity.  Whether DJW’s likely testamentary intentions accord with the proposed will.  Whether the making of a will in the proposed terms is reasonable in the circumstances:

Held per Gray J (allowing the application):

1.  DJW lacks testamentary capacity.

2.  The will originally proposed would not reflect DJW’s likely testamentary intentions given the terms of the compromise of his personal injury claim and his present and likely future relationship with particular members of his family.

3.  The making of a will in the terms proposed in these reasons reflects DJW’s likely testamentary intentions and is reasonable in all the circumstances.

Aged and Infirm Persons’ Property Act 1940 (SA); Wills Act 1936 (SA) s 7; Probate Rules 1997 (SA) r 98, referred to.
Bryant v Blake (2004) 237 LSJS 23; Hoffmann v Waters (2007) 98 SASR 500; Monger v Taylor [2000] VSC 304; Boulton v Sanders (2004) 9 VR 495; Re Fenwick (2009) 76 NSWLR 22; Re Palmer [2003] VSC 21; In the Matter of Shaun Arthur Pickles [2013] SASC 175; In the Matter of Rak [2009] SASC 288; Re Brown [2009] SASC 345; In the Matter of De Jager [2012] SASC 236; Banks v Goodfellow (1870) LR 5 QB 549; In The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; Re Brown [2009] SASC 345; Re C (A Patient) [1991] 3 All ER 866, considered.

W, DJ
[2015] SASC 45

Testamentary Causes Jurisdiction

GRAY J.

  1. This is an application for the making of a statutory will.

  2. DJW was born on 21 November 1997.  He suffered serious injury as a result of a complicated birth.  A compromise of personal injury proceedings was approved by a Master in the District Court in 2012.  As part of the compromise, a protection order was made under the Aged and Infirm Persons’ Property Act 1940 (SA) with Australian Executor Trustees Limited appointed manager of the protected estate.

  3. Agreement was reached between…

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AGLC
Re W, DJ [2015] SASC 45
Case
[2015] SASC 45
Decision Date

CaseChat Overview and Summary

The case involves DJW, who was born with severe physical and intellectual disabilities due to a complicated birth, and the application for making a statutory will on his behalf. DJW's parents have separated, and he has minimal contact with his father. DJW lives with his mother and sister, and spends time with his half-sister on his mother's side. The court was required to determine whether DJW lacked testamentary capacity, and if so, whether the proposed will accurately reflected his likely testamentary intentions.

The court found that DJW lacked testamentary capacity due to his severe disabilities and determined that a statutory will should be made. However, the court was not satisfied that the proposed will accurately reflected DJW's likely testamentary intentions. The court found that the proposed will did not adequately account for DJW's minimal contact with his father and his half-siblings on his father's side. The court also found that the proposed will did not adequately account for the substantial payment DJW received as part of a personal injury settlement.

The court ordered that a statutory will be made in accordance with the terms outlined in the decision. The court emphasized that the will should reflect DJW's likely testamentary intentions and that it was desirable to avoid intestacy. The court also noted that if a material change of circumstances occurs following the making of the statutory will, the court may be approached again for the making of a codicil or further statutory will.

This case highlights the importance of considering the unique circumstances of individuals with disabilities when making decisions about their estate planning. The court emphasized the need for a will that accurately reflects the individual's likely testamentary intentions, and the need to avoid intestacy. The case also highlights the importance of considering the potential impact of significant financial settlements on estate planning decisions.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I am satisfied that DJW lacks testamentary capacity and that an order for a statutory will should be made. However, I am not satisfied that the terms of the proposed will accurately reflect DJW’s likely testamentary intentions. Background On 28 March 2013, Australian Executor Trustees, by summons, sought leave to make the application for a statutory will pursuant to section 7 of the Wills Act 1936 (SA) and rule 98 of the Probate Rules 1997 (SA).[1] [1] The summons refers to the 1997 Rules, however for the purposes of these reasons, I have presumed a reference to the 2004 Rules was intended. On 14 May 2013, the Registrar of Probates ordered that the proceeding be served on the Public Advocate and DJW’s father. Initially, the amount of the compromise the subject of the District Court orders was not disclosed to the Court. This was raised by the Registrar with the solicitors for the applicant. The Registrar then referred the matter to me. The figure of the compromise was subsequently disclosed as $8,550,000.00, together with an order for costs. The applicant, at my direction, notified DJW’s father of the terms of the Court order. DJW’s father appeared through representation. On 8 July 2013, I made an order appointing the Public Trustee as litigation guardian for DJW. As the matter progressed, it became apparent that the application was being brought at the instigation of DJW’s mother. On 1 October 2013, I made an order substituting DJW’s mother as the plaintiff in the proceeding in lieu of Australian Executor Trustees. DJW was born in traumatic circumstances resulting in a deprivation of oxygen for five minutes prior to revival following delivery. Subsequent to his delivery, DJW suffered from seizures and swelling around the brain. He also suffered a range of injuries, including cerebral palsy, microcephaly, intellectual disability, cortical vision impairment, catastrophic brain damage and hypoxic ischaemic encephalopathy. As a result of his injuries, DJW has no functional capacity to use his hands; severe cognitive impairment; severely impaired gross and fine motor skills; mild tonal impairments; spasticity of the lower limbs; low proximal tone; ritualistic behaviour, including rocking and head banging; severe communication, speech and language delays; and severe behavioural impairments. At a young age, he underwent gastrostomy surgery for the insertion of a feeding tube, through which he now receives his nutrition. In April 2002, DJW, by his next friend and litigation guardian, issued proceedings against the Flinders Medical Centre seeking damages arising as a result of the injuries. The proceedings were transferred to the District Court and the matter was mediated in July 2012. The matter settled and consent orders were entered in the District Court approving the settlement and making DJW subject to a protection order, with Australian Executor Trustees appointed manager of DJW’s estate as a protected person’s estate. DJW does not have a will and, in the event of his death, his estate would be administered according to the rules of intestacy.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
Early in the proceedings, the Court expressed the view that it was highly probable that DJW would have wished a simple and straightforward testamentary disposition. I have provided the Registrar of Probates with a draft of these reasons and requested that he prepare a draft will in accordance with these reasons. The draft will appearing as a schedule to these reasons is in a form that I am prepared to approve and direct the Registrar to sign. Conclusion I am not satisfied that the proposed will advanced by DJW’s parents properly reflects DJW’s likely testamentary intentions. The solicitor appointed to represent DJW, having become aware of the benefits passing to DJW’s mother as part of the litigation settlement, distanced her client from some of the terms of the proposed will. In my view, she was correct to do so. I am satisfied, however, that the testamentary dispositions I have outlined above reflect DJW’s likely testamentary intentions and that it is desirable for an intestacy to be avoided by the granting of an order allowing an application for a statutory will in those terms. It is to be understood that, if following the making of a statutory will, a material change of circumstances occurs, the Court may be approached again for the making of a codicil or further statutory will. SHEDULETHIS IS THE LAST WILL AND TESTAMENT of me [DJW] of [address] in the State of South Australia, authorised by an order dated the 25th day of March 2015 made under sections 6 and 7 of the Wills Act 1936.1I REVOKE all former Wills and Codicils made by me.2I APPOINT AUSTRALIAN EXECUTOR TRUSTEES LIMITED of 44 Pirie Street Adelaide in the said State to be the sole executor and trustee of this my Will.3I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustee upon trust to pay thereout my funeral and testamentary expenses and debts and all the duties payable in respect of my estate and to divide the residue of my estate into four equal parts and stand possessed of those parts as follows:-(A)As to two parts for my mother [MB] provided she survives me for a period of 28 days BUT if she does not survive me for a period of 28 days then for such of my sisters [EKW] and [SKD] as survive me and attain the age of 21 years and if both then in equal shares between them; (B)As to one part for my father [WDW] provided he survives me for a period of 28 days BUT if he does not survive me for a period of 28 days then for my sister [AW]; and(C)As to the remaining part for such of my sisters [EKW] and [SKD] as survive me and attain the age of 21 years and if both then in equal shares between them.4I EMPOWER my trustee:-(A)To apply the whole or any part of the contingent or vested share in the capital and income of my estate of any beneficiary of this my will under the age of 21 years towards the maintenance education or advancement in life or generally for the benefit of such beneficiary and I further empower my trustee in its discretion to make such payments to the guardian for the time being of such beneficiary or to any person with whom such beneficiary may be living without being in any way answerable for the application thereof.(B)At such time or times as my trustee shall think fit and in such manner and upon such terms and conditions as my trustee shall think fit to sell call in or convert into money any part or parts of my estate which shall not consist of money.(C)To appropriate any part or parts of my estate in or towards the satisfaction of the share or interest of any beneficiary in my estate and for such purpose to determine the value or values of any asset or assets to be so appropriated.(D)To determine in the absolute discretion of my trustee (in the event of my trustee disposing of or being deemed to have disposed of an asset) what part or parts of the capital or income of my trust estate will be resorted to in payment of any income tax liability flowing from the disposal or deemed disposal.(E)From time to time to lease or let all or any part of the real or leasehold property forming part of my estate and remaining unsold either from year to year or for any period not exceeding three years at the best rent to be obtained therefor and in its absolute discretion to manage and superintend the management of such real or leasehold property and generally to deal therewith in a proper and due course of management as if beneficially entitled thereto.DATED this day of 2015Registrar of Probates

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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