Re Will of Jane - [2011] NSWSC 624

Supreme Court

New South Wales

Medium Neutral Citation: Re Will of Jane [2011] NSWSC 624
Hearing dates: 22 June 2011
Decision date: 20 July 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
(a) Leave under s 19(1) of the Succession Act 2006 to make the application for the order, as well as for the alternative order for a statutory will is refused.
(b) Order that the Summons be dismissed.
(c) Stand the proceedings over to a date to be agreed for argument, if any, as to costs.

Catchwords: Application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - NSW Trustee & Guardian appointed to represent first Defendant - Plaintiff, second and third Defendants are children of first Defendant - All Defendants oppose Plaintiff's application
Legislation Cited: Family Provision Act 1982
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Succession Act 2006
Cases Cited: AB v CB [2009] NSWSC 680
Bank of Scotland v Bennett [1997] 1 Fam Law R 801
Banks v Goodfellow (1870) LR 5 QB 549
Crawley, Re the Estate of [2010] NSWSC 618
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836
Fenwick, Re (2009) 76 NSWLR 22
Jeavons v Chapman (No 2) [2009] SASC 3
Johnson v NSW Guardianship Tribunal [2009] NSWSC 664
Johnson v Smith [2010] NSWSC 125
Kelso, Application by Peter Leslie [2010] NSWSC 357
Nock v Austin (1918) 25 CLR 519
Sharp v Adam [2006] EWCA 449; [2006] WTLR 1059
Sportsbet Pty Ltd v NSW (No 9) [2010] FCA 31
Texts Cited: Shorter Oxford English Dictionary
Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2nd Ed)
Category: Principal judgment
Parties: Plaintiff
"Jane" (first Defendant)
second Defendant
third Defendant
Representation: Counsel:
Plaintiff appeared in person
Mr L Ellison SC (first Defendant)
Second Defendant appeared in person
Third Defendant appeared in person
Solicitors:
Plaintiff appeared in person
NSW Trustee & Guardian (first Defendant)
Second Defendant appeared in person
Third Defendant appeared in person

File Number(s): 2010/381344

Judgment

The Application

HIS HONOUR: This is an application under s 18 of the Succession Act 2006 ("the Act"), by the Plaintiff, for the making of a statutory will, for his mother, to whom I shall refer, hereafter, by the pseudonym "Jane".

The Summons was filed on 16 November 2010. The Plaintiff also seeks that leave be granted to him, pursuant to s 19 of the Act, to make an application for a statutory will on behalf of Jane pursuant to s 18 of the Act, and also a final order, under s 18, authorising such a will in the form that he has provided to the Court.

Without opposition, an order for Jane's separate representation, under s 25 of the Act, was made on 2 May 2011, and the NSW Trustee & Guardian was appointed to represent Jane in the substantive proceedings. This was done because it was submitted that the circumstances suggested that the proposed statutory will may not be in terms that Jane would have made. The NSW Trustee & Guardian's form of Consent to act as Tutor, dated 15 June 2011, has been filed.

The Court will publish these reasons for judgment using the pseudonym for the first Defendant to protect the privacy of the parties. It will identify other relevant persons by reference to his, her, or its, role, as a party in the present proceedings.

Apart from Jane, the Defendants named in the proceedings are her daughter (to whom I shall refer as "the second Defendant"), and her son (to whom I shall refer as "the third Defendant"). Each is a sibling of the Plaintiff. All parties agree, and I am satisfied that, there is no other person who ought to be made a defendant in the proceedings. I am also satisfied that all persons who may be interested in the application have been given due notice of it.

All of the Defendants oppose the relief sought by the Plaintiff. Mr L J Ellison SC represented Jane at the hearing. The Plaintiff and the second and third Defendants each appeared without legal representation.

The Plaintiff, Mr Ellison SC on behalf of Jane, and the second Defendant, each filed written submissions. The third Defendant adopted the submissions made on behalf of Jane and by the second Defendant. Each of the written submissions will be retained with the Court papers.

It is fair to say, without being unduly harsh since he was unrepresented, that the Plaintiff's submissions had more to do with a criticism of the second Defendant, and with a challenge to her veracity, than with the facts and circumstances that would assist in determining the real issues in this case. The second Defendant's submissions were more concerned with the issues in the case, but still made a significant number of criticisms of the Plaintiff, many of which do not assist me in determining the issues in this case. Each accepted, during oral submissions, however, that most of the factual matters dealing with the criticisms of the other person were in dispute.

At the commencement of the case, I made it clear that in these reasons I would not descend into the debate between them, or make findings, about any, or all, of the conflicting evidence that related to the conduct of one, or other, of the siblings in prior proceedings, or about the nature of that sibling's evidence in those proceedings. I also stated that I would reject any attempt by the Plaintiff to debate the correctness of any of the prior decisions.

It seems to me that the real relevance and significance of the prior proceedings involving the parties, relate to the nature, result, and financial effect of each, rather than whether one witness, or another, is said to have given false, or inaccurate, evidence, or whether findings, if any, of wrongdoing on the part of one, or other, of them were made. This is because the basis for the Plaintiff's submission relates to what are said to be the likely wishes of Jane.

In addition, the written submissions dealt with the basis for, and the prospects of success of, a claim for a family provision order that would, or might, be made, following Jane's death. As will be referred to later in these reasons, this is a case where, it would seem, whatever the determination, a claim for such an order will be made by one, or more, of Jane's children. This seems to have been accepted by all parties.

The Proposed Statutory Will

In summary, the proposed statutory will sought by the Plaintiff is one in which the Public Trustee is to be executor and the whole of the deceased's estate is left to the Plaintiff absolutely. (The statutory office of Public Trustee has been abolished. Its functions are now exercised by the new statutory office of "NSW Trustee and Guardian": NSW Trustee and Guardian Act 2009, commencing 1 July 2009. Accordingly, I read the reference to the Public Trustee in the proposed statutory will as a reference to the NSW Trustee & Guardian.)

Although it is not entirely clear, it seems, in the event that the Plaintiff does not survive Jane, that her estate is to be left, as to 40 per cent to BoysTown, as to 40 per cent to Guide Dogs NSW/ACT, and as to 20 per cent to the Royal Blind Society of NSW.

There are other matters referred to in the proposed statutory will, but these do not call for specific comment in these reasons. However, if the Plaintiff's application were successful, it would be necessary to omit some of what is stated from that Will (i.e. the narrative ("testimony") contained in the second half of that document).

In broad summary, the basis of the Plaintiff's claim seems to be that Jane would be reasonably likely to make a new will in the form proposed, because each of the second and third Defendants has engaged in what he described as "reprehensible conduct"; that the second and third Defendants each has no "need" that is not of her, or his, own making; and that the Plaintiff was, and is, a dutiful son who has made significant sacrifices helping his parents. I shall return to the precise evidence of the Plaintiff, on this topic, later in these reasons.

Alternative Relief

During submissions, I raised with the parties the question whether, in any event, there would need to be consideration given to the appointment of an executor of any Will that may be made by the Court, or a change to Jane's existing will by including the nomination of an executor.

The Plaintiff submitted that there should be, and that the NSW Trustee & Guardian should be nominated. At the end of his submissions, he submitted, as an alternative to the proposed statutory will, one that was in the form of Jane's current will, but altered by omitting no longer relevant parts (due to the death of persons referred to) and by including the NSW Trustee & Guardian as the nominated executor.

Mr Ellison SC, on behalf of Jane, submitted that the only evidence that related to Jane's prior statements as to the appointment of an executor of a will, suggested that it should be the second Defendant. He conceded, however, in the light of events since the statement was made, that the Court could find that it was reasonably likely that Jane would want to minimize conflicts between her children, and that this might be achieved by appointing an independent executor.

The second Defendant opposed the granting of alternative relief by amendment of Jane's existing will, which amendment had the effect of appointing an independent executor, upon the basis that she had never heard Jane make any statement to the effect that she would want a corporate executor. She stated that she was the administrator of her father's estate, also the financial manager of Jane's estate, and that whilst she may not, at the relevant time, seek appointment as the administrator of Jane's will, she would not want to pre-empt the position by agreeing to that course now.

It was also submitted that Jane's estate was likely to be relatively simple to administer, as it would consist almost entirely of cash and that the associated costs, commission and expenses of a corporate executor would not be warranted.

The third Defendant agreed that whilst Jane was reasonably likely to want to minimize conflicts between her children following her death, he, also, opposed any amendment permitting an alternative to the proposed statutory will, to be considered by the Court as part of this application. He, otherwise, supported the submissions made on behalf of the second Defendant on this issue.

Other Applications by the Plaintiff in these Proceedings

In addition to the relief sought in the Summons, the Plaintiff had filed a notice of motion on 11 March 2011, in which he sought an order that Jane's property at Lindfield ("the Lindfield property") not be sold, and that no proceedings be taken to terminate his occupation thereof. (The Lindfield property had been purchased in about 2000 and it was there that Jane, her husband and the Plaintiff lived between 2000 and 2007, and where the Plaintiff continued to live until April or May 2011.)

After the matter came before me on 21 March 2011, and directions were made, the Plaintiff advised the Court that he was not proceeding with the notice of motion that had been filed. In the circumstances, I dismissed that notice of motion with costs.

The Plaintiff then filed another notice of motion, on 29 March 2011, in which he sought an order for the appointment of a new financial manager of Jane. He decided, subsequently, not to proceed with that notice of motion, and it, too, was dismissed with costs.

There is no estimate of Jane's costs in respect of each of those notices of motion. Whilst they may not be substantial (comparatively), those costs have been incurred. Because each of the second and third Defendants was self-represented, no substantial costs by each was incurred.

Jane's Current Estate

The nature and value of Jane's estate, as deposed to by the second Defendant, is:

(a)

Lindfield property (est):

$1,500,000

(b)

Bank accounts:

$ 83,915

(c)

Westpac term deposit (est):

$ 215,000

(d)

Commonwealth Bank term deposit (est):

$ 76,923

(e)

Commonwealth Bank term deposit (est):

$ 55,000

(f)

Company shares (est):

$ 30,034

(g)

NSW Trustee & Guardian account (est):

$ 114

Total:

$ 1,960,987

(Cents omitted but included in total)

Jane is said to have some liabilities. These include costs associated with preparing the Lindfield property for sale (between $10,000 and $12,000) and the costs of having the legal costs ordered to be paid by the Plaintiff assessed. In addition, from the proceeds of sale of the Lindfield property, which should be sold in the not too distant future, the balance of the legacy must be paid to the Plaintiff.

Jane has an annual income of about $52,326. Her annual expenditure has not been estimated.

The Plaintiff asserts that there may be additional assets being "significant claims for damages" that Jane may be entitled to make against the second Defendant and the third Defendant. It is unnecessary to determine whether the Plaintiff's assertions are correct. It is a matter that may, or may not, be relevant, at some time in the future.

Undisputed Background Facts

It is necessary to set out the following facts, which are not in dispute between the parties, or which have been clearly established by the evidence.

Jane was born in April 1925. She is now 86 years of age.

Jane married her husband, the father of the Plaintiff and second and third Defendants in April 1958. The second Defendant was born in 1959, the third Defendant in 1960, and the Plaintiff in 1962. Jane and her husband was each an only child. Accordingly, the second Defendant, the third Defendant and the Plaintiff have no aunts, uncles, or cousins.

Jane made a duly executed Will on 5 January 1962 ("the 1962 Will"). That Will was made with the assistance of solicitors (Messrs Hunt & Hunt). The parties agree that there is no evidence that she ever gave instructions for, or made, any other testamentary instrument. So far as is known, the 1962 Will is Jane's only Will.

In the 1962 Will, Jane appointed her husband as sole executor and beneficiary provided he survived her for a period of one calendar month. If he did not, Jane appointed her friend, Marion Mary Barber, as the sole executrix and she left the estate to which her husband would otherwise have become entitled "to my child or children if more than one in equal shares share and share alike as tenants in common absolutely". Ms Barber was also appointed the legal guardian of any infant child or children.

Both Jane's husband, and Ms Barber predeceased Jane. Jane's husband died on 5 July 2007. It is not known when Marion Mary Barber died. It may have been in 1967 (Ex A 753).

Letters of Administration of Jane's husband's estate, on intestacy, were granted to the second Defendant on 4 March 2009. The grant was limited "until [Jane], the widow of the deceased shall recover from her disability".

The husband's estate was disclosed as having an estimated, or known, value of $64,410, although other assets were disclosed as being jointly held with Jane (monies held in joint bank accounts ($717,731) and the deceased's interest in the Lindfield property (that share was estimated to have a value of $825,000)).

Jane was diagnosed with dementia in about August 2006. In May 2007, the Care Co-ordinator of the Mercy Community Care (Complex Care Team) attempted an assessment of Jane at her home. In a report dated 24 July 2007, one of several concerns raised after the first home visit, was "the extent of [Jane's] dementia and the level of care she would need". Jane was noted as being "consistently aggressive towards care worker and extremely resistive to intervention or assistance".

It was reasonably clear, by then, although the Plaintiff might not have considered it to be so, that he and his father, as Jane's carers, were having, and would continue to have, some difficulty caring for her, and that, in time, they would need respite care: Ex A 218-224.

On 5 July 2007, Jane was admitted to Hornsby Hospital. She presented with increased confusion, disorientation, and agitation when confronted. She was identified as needing "strict supervision".

On 30 July 2007, Jane was transferred from Hornsby Hospital to Graythwaite Nursing Home. In December 2008, she was transferred to Aldersgate House Nursing Home.

The Plaintiff, in an email of 18 July 2007, addressed to his then solicitor, and copied to the second Defendant (Ex A 200-206), set out a "chronology of events" relating to his parents. In summary, he appeared to acknowledge that Jane had lost testamentary capacity by April 2007, writing that "even when she does have good days she becomes distracted by anything and no stranger or lawyer could have a long talk with her without her drifting off again".

Shortly after Jane's admission to Hornsby Hospital, the second Defendant applied to the Guardianship Tribunal of New South Wales for a financial management order in respect of Jane and the appointment of herself as Jane's financial manager.

On 17 September 2007, the Guardianship Tribunal made a financial management order and it appointed the second Defendant as the financial manager. The appointment was subject to the provisions of s 25M of the Guardianship Act 1987, which required directions to be given by the Protective Commissioner (as the NSW Trustee & Guardian then was) for any steps to be taken other than actions necessary to protect the assets of her estate.

In its Reasons for Decision, the Guardianship Tribunal noted that the parties before it, who included both the second Defendant and the Plaintiff, did not dispute the evidence presented in relation to Jane's disability, and also that all of her children agreed that Jane was no longer capable of managing her financial affairs.

In September 2007, the Public Guardian was appointed Jane's guardian, with the functions of accommodation, health care, medical and dental treatment and services for 12 months.

The Guardianship Tribunal reviewed the limited guardianship order in March 2008. It ordered continuing guardianship but varied it by giving the guardian the additional function of access. The NSW Trustee & Guardian remains Jane's guardian. There is, currently, no challenge to that appointment. Despite the request of the Plaintiff that it review its prior financial management order, it confirmed the appointment of the second Defendant as Jane's financial manager.

The second Defendant gives evidence that Jane supported charities such as the Royal Blind Society and the Spastic Centre. However, she did not make donations, but instead bought fund-raising merchandise from them, including raffle tickets. She also gave evidence that "only a small part of [Jane's] income was ever spent supporting charities".

There is no evidence from the Plaintiff about Jane's involvement with charities. During submissions, he agreed that the second Defendant's evidence on this topic was not subject of substantial dispute.

There is no evidence, also, that, since losing capacity, Jane has received support from any charitable institution.

During the Guardianship Tribunal hearing on 17 September 2007, each of the Plaintiff, and the second and third Defendants, gave evidence that Jane would not want a public official acting as her substitute decision maker (Ex A 300). That, of course, was in the context of the appointment of a guardian. However, it may provide some basis for the second and third Defendant's opposition to the alternative proposed statutory will advanced by the Plaintiff.

The Statutory Will - Legislative Scheme

The sections of the Act that are relevant to the matters the subject of these proceedings, commence at s 18. They form part of the new Division 2 of Part 2.2 (sections 18-26) introduced in the Act. They apply on, or after, the commencement of the Act, and, in the case of an order with respect to the alteration, or total, or partial, revocation of a will, apply, even if the will was made before that commencement date (see Cl 3(5) of Sch 1). There is no dispute that the Act may be relied upon in respect of Jane.

The Court may make an order authorising a will to be made in specific terms approved by the court on behalf of a person who does not have testamentary capacity: s 18(1)(a). The order under this section may authorise the making, or alteration, of a will that deals with the whole, or part of, the property of the person who lacks testamentary capacity, or the alteration of part only of the will of the person: s 18(2). An order, however, may only be made if that person is alive: s 18(3).

The Court may order separate representation for the person lacking testamentary capacity in the legal proceedings brought under this Part, if it appears to the Court that such person should be separately represented: s 25.

It is to be observed that s 18(1) contemplates that "any person" may make an application. There is no reason to read down the words "any person" except by reference to s 22, to which reference will be made later in these reasons.

Leave to make the application for the statutory will must first be obtained: s 19(1). However, the application for leave and authorisation may be heard together: s 20(1). In making an order, the court may make any necessary related orders or directions: s 18(5).

It can be seen, from what has been said so far, that the Act contemplates a two-stage procedure for the authorisation of a statutory will - first, an application under s 19 of the Act for leave to apply for an order under s 18 and, second, an application, under s 18 of the Act, for an order authorising a will to be made, in specific terms, approved by the Court.

In following this procedure, baseless, or unmeritorious, applications are likely to be screened out at a relatively early stage. However, in a clear case, under s 20(1) on hearing an application for leave, the Court may proceed to determine the application under s 18 and, if satisfied of the matters set out in s 22, make the order. This will be done to save the parties expense and time.

The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of s 19(2) and s 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: see Re Fenwick [2009] NSWSC 530; (2009) 76 NSWLR 22, at [120].

If an order is made under s 18, the will that is made, or altered, must be deposited with the Registrar (s 18(6)). It is properly executed if it is in writing, and it is signed by the Registrar and sealed with the seal of the Court. The Registrar may only sign the will if the person in relation to whom the order was made is alive: s 23. The Registrar must retain the will until the Court makes a s 18 order wholly revoking the will, or the person for whom the order under s 18 was made, has acquired, or regained, testamentary capacity: s 24.

Specified information must, unless the Court otherwise directs, be given to the Court in support of the application for leave: s 19(2). I shall refer to the specified information later in these reasons.

The checklist provided by s 19 is neither exhaustive, nor rigid, and the Court may dispense with the requirement to provide some of the information when it is clear that the required information exists, or might exist, but it could have no bearing on the fate of the leave application, or on the application for a final order, or if to require it to be provided would entail needless expense and delay. No such dispensation is required where the information does not exist.

Without limiting the action the Court may take in hearing the application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court's approval is sought: s 20(2). Therefore, if the proposed statutory will fundamentally fulfils the requirements of the section, but requires adjustments, the Court may make such adjustments by modifying, redrafting or altering its terms.

Section 21 provides that in considering an application for an order under s 18 (but it would appear, not for leave under s 20(1)), the Court may have regard to any information given to the Court in support of the application under s 19, may inform itself of any other matter in any manner it sees fit, and is not bound by the rules of evidence. The use of the word "information" in the section, suggests that, except as otherwise provided, it does not have to take the form of admissible evidence. These broad powers provide the Court with something of an inquisitorial role.

The Court, by s 22, must refuse leave to make an application for an order under s 18 unless the Court is satisfied of five different matters, namely, that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will ( lack of testamentary capacity);

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity (accurate reflection of testamentary intentions);

(d) the applicant for leave is an appropriate person to make the application (appropriateness of applicant); and

(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift, or benefit, from the estate of the person in relation to whom the order is sought (proper contradictors).

As each of those conditions must be satisfied before the Court can grant leave under s 21(2), the power of the court under s 18(1) to authorise the making of the Will shares that predicate: s 20(1)(b). The section, however, does not demand certainty.

As ordinary words, "to be satisfied" means to be furnished with sufficient proof that the Court is assured or convinced, on the balance of probabilities, of each of the conditions.

To be satisfied requires the Court to assess the terms of the proposed statutory will, whilst retaining, under s 20, power to revise those terms in order to perfect its conformity with the incapacitated person's reasonably likely testamentary intentions. It would appear to demand a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions.

It can be seen that under s 18(1), the Court can make a final order only in respect of a person "who lacks testamentary capacity". However, on the application for leave under s 19, the Court must be satisfied that "there is reason to believe that [the incapacitated person] is, or is reasonably likely to be, incapable of making a will": s 22(a). Thus, in the leave application, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity, but in order to obtain a final order, a jurisdictional fact must be proved, i.e. that the proposed testator actually lacks testamentary capacity: Re Fenwick at [121].

There is no definition of "testamentary capacity" in the Act. It must, however, mean "the capacity to make a will". Nor is the cause of any incapacity stated. It may arise from mental illness, head injury, stroke, a degenerative disease or condition, or an inability to communicate because of a physical, or other, disability.

What constitutes testamentary capacity was explained by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

It is that formulation which applies under the Act: Re Fenwick at [126]. The statement has been described as "a durable formulation" which "has withstood the test of time" Sharp v Adam [2006] EWCA 449; [2006] WTLR 1059 at [82] and [66]).

The Court's concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is reasonably likely to be incapable of making a will, that must be considered. It is not an objective, or hypothetical, person who is considered. The jurisdiction of the Court is, so far as is possible, to make a statutory will in the terms in which a will would have been made by that person if the person had testamentary capacity at the time of the hearing of the application.

As Palmer J put it in Re Fenwick at [155]:

"has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?"

His Honour also said at [161]:

"In such a case the Court may be satisfied as to what the incap acitated person is 'reasonably likely' to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person's testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances."

If an actual intention cannot be established, the sub-section speaks in the chameleon-like language of reasonable likelihood. The degree of satisfaction that the phrase "reasonably likely" contemplates is difficult to discern. The phrase has a different connotation from the single word "likely". The qualifying adverb "reasonably" requires that the word "likely" be given a meaning less definite than "probable". It is that word ("reasonably") which governs the standard of likelihood. It lessens the intensity of the word "likely". In other words, quantitative guidance is suggested by the word "reasonably" whilst the word "likely" requires a qualitative judgment.

As to the phrase "reasonably likely" Palmer J said in Re Fenwick at [152]:

"Thus "reasonably likely" can mean "a fairly good chance that it is likely" or "some reasonable people could think that it is likely" or "some reasonable people could think that there is a fairly good chance that it is likely". Such are the nuances of the English language."

The Shorter Oxford English Dictionary defines "reasonably" as "sufficiently, fairly".

Although the context being considered was very different to the present, the observations of the Victorian Full Court concerning the phrase "reasonably likely" in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 are useful. Marks J said of the phrase "reasonably likely", at 842:

"The expression "reasonably likely" is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is "odds on", or where between nil and certainty it should be placed. A chance which in common parlance is described as "reasonable" is one that is "fair", "sufficient" or "worth noting". It is not inapt to attribute such meaning to the expression in s 31(1) of the Act."

More recently, in Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31, Perram J when considering whether documents should be produced under a notice to produce, at [4], said:

"[4] Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty ... that travels beyond the merely conjectural."

Whether the proposed statutory will is "reasonably likely" must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed will is one that is, or would have been reasonably likely to have been, made by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture.

If the actual, or reasonably likely, testamentary intentions are established, the next question is whether those intentions would have been carried into testamentary effect by the person "if he or she had testamentary capacity"? A previous will, or wills, may give a clear indication of the person's testamentary choices and preferences such as to provide evidence of what it is reasonably likely he, or she, would do if he, or she, had testamentary capacity.

The question is not whether he, or she, would likely have preferred the proposed statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be "reasonably likely" to be a will that he, or she, would have made had he, or she, had testamentary capacity.

Clearly, in determining the answer to the question raised by s 22(b), the Court must be cautious, mindful of the consequences of a decision under s 18. It is a serious matter for the Court to appropriate to itself the will-making power of the citizen: Re Fenwick at [130]. It will never be an easy task because of the condition of the person in circumstances where his, or her, actual last words on the topic were formally made, in this case, a long time ago, or where they may never have been formally articulated.

There is nothing in s 22(c) that provides guidance as to what circumstances, in addition to those set out in the other paragraphs of the section, are to be taken into account in determining whether a final order, is, or may be, "appropriate", which, I take to mean "suitable" or "proper". What is required is for the court to assess, objectively, whether, and to what extent, it is, or may be, "appropriate" to make the order under s 18. In so doing, what the Court must consider is whether the expressed intention is the product of the incapacitated person's free choice, or has some undue pressure or influence been applied?

Some assistance in answering this question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory will.

Section 22(c) enables the Court to grant leave if it is satisfied that the evidence results in a final order being appropriate, or that it may be appropriate, having regard to the possibility that further evidence may be adduced at the final order stage which will positively satisfy the Court that the final order is then appropriate: Re Fenwick at [189].

In relation to s 22(1)(d), there is no definition of who may, or may not, be an "appropriate" person, seeking leave to make the application for an order. Again, the words "suitable" or "proper" appear apt in determining whether this condition is satisfied. It is doubtful that an "officious bystander" might be such a person.

In South Australia, where the equivalent section provides that "any" person may make an application, it has been said, in Jeavons v Chapman (No 2) [2009] SASC 3, at [30], that:

"[S]olicitors, social workers and health care workers who may be closely involved with the person should be entitled to make applications. The Protective Commissioner who may already be managing the person's financial affairs should also be entitled to make an application".

One would expect that there could be no difficulty establishing this requirement in a case where the applicant for leave was a person who had no real interest in the outcome of the application for an order: see, for example, Application by Peter Leslie Kelso [2010] NSWSC 357.

However, one might be concerned whether a person who is to benefit by the proposed statutory will is "appropriate", since he, or she, has a real interest in the outcome of the application. In probate suits, where there is an issue about the validity of a will, the court regards as a circumstance exciting suspicion, a will prepared by a person who takes a benefit under it, or if the beneficiary is instrumental in having it prepared, and calls for the vigilant and anxious examination of the evidence as to the testator's appreciation and approval of the contents of the will: Nock v Austin (1918) 25 CLR 519 at 528.

However, this concern, in the present context, is avoided by the requirement in s 22(b) that the court be satisfied that the proposed statutory will is, or is reasonably likely to be, one that would have been made by the incapable person if she, or he, had testamentary capacity. That requirement, in my view, similarly suggests a vigilant and anxious examination of the evidence as to the incapable person's actual, or reasonably likely, intentions.

In New South Wales, it has been held that one who may benefit from the proposed statutory will could make the application. In such a circumstance, the Court might order separate representation, particularly if it appears that there is, at least the possibility of, a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made: AB v CB [2009] NSWSC 680 at [13].

On the question of representation under s 22(e), the applicant should take all steps necessary to identify, locate, and serve any person who may have a legitimate interest in the application. Importantly, the class of persons may be wider than "persons for whom provision might reasonably be expected to be made by the will".

The class of persons under sub-s (e) are likely to include beneficiaries under an earlier will, any person entitled on intestacy, persons who may have a claim on the bounty of the person lacking capacity, and perhaps, any eligible person within the meaning of that term in s 57 of the Succession Act .

The lack of testamentary capacity, the accurate reflection of testamentary intentions, and the adequacy of steps taken for proper contradictors are matters of fact that are to be established. What may be described as the "appropriateness" requirements involve the exercise of curial discretion. Thus, whilst relevant parties might consent to the terms of the proposed statutory will, that consent cannot be conclusive because the execution of a will for a person who lacks capacity is a decision to be made by the court.

It has been said by Palmer J in Re Fenwick at [132]:

"It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people's lives, in the best possible way."

It is important to note also that the power vested in the Court is not a power to review the reasonableness of the earlier dispositions made by a person then having testamentary capacity, on the grounds that the person now lacks such capacity. It is a power only to be exercised in situations where the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity. Thus, it is not a power of "substituted judgment".

Equally important is the overarching principle in relation to any decision made on behalf of an incapable person that it must be made in his, or her, best interests.

The Act provides no guidance as to what should happen in relation to the costs of an application for approval of a proposed statutory will. In a case where the application fails, the general principle that costs follow the event might be appropriate, especially if the application is opposed and the person making the application seeks to benefit under the will that has been proposed. However, the burden of costs remains in the discretion of the Court.

Other Litigation involving the Plaintiff

Because part of the Plaintiff's case is that the second Defendant's conduct in bringing, or defending, other proceedings was "reprehensible", it is necessary to refer to those other proceedings in which the Plaintiff and the second Defendant have been involved.

In October 2007, the Plaintiff filed an application in the Administrative Decisions Tribunal appealing the decision of the Guardianship Tribunal. He alleged that the Tribunal hearing "was bias (sic) and lack (sic) procedural fairness contributed to by substantial procedural failures during the Tribunal investigation": Ex A 336. Subsequently, he indicated that the appeal was no longer proceeding and in December 2007, the Administrative Decisions Tribunal decided to mark the file "appears as withdrawn".

By Summons filed in this Court in May 2009, the Plaintiff sought that the Protective Commissioner be appointed as financial manager of Jane's affairs or, alternatively, that he, the Plaintiff, be appointed and that he also be appointed as his mother's guardian.

Palmer J heard these proceedings in July 2009. The Plaintiff was unsuccessful, his Honour concluding:

"For the reasons advanced by the Tribunal in its decision of 17 September 2007 which, in my perception apply equally today, I decline to set aside the orders made by the Tribunal on 17 September 2007."

There were proceedings, brought by the second Defendant as tutor for Jane, in which she sought to recover $540,000 that the Plaintiff had allegedly transferred out of Jane's bank accounts, prior to the financial management order, for his own use. Forster J heard those proceedings between 18 and 22 May 2009. His Honour delivered reasons for Judgment in June 2009. The second Defendant was successful and the Plaintiff was ordered to repay a lump sum ($100,055.18) to Jane. It was declared that other moneys in an account held in the joint names of the Plaintiff and his father, and in two accounts in the name of the Plaintiff, were held on trust for Jane. These funds were recovered also. The Plaintiff was ordered to pay Jane's costs of the proceedings.

The Plaintiff brought an appeal from the reasons of Forster J, which appeal was heard by the Court of Appeal in July 2010, and determined, in November 2010. The Plaintiff was unsuccessful in the appeal and it was dismissed with costs.

The Plaintiff brought an application for special leave to appeal to the High Court from the decision of the Court of Appeal in April 2011. His application was dismissed upon the bases that the written submissions developed no questions of law such as would warrant a grant of special leave; that any appeal would have insufficient prospects of success; and, finally, because it was not in the interests of justice, either generally, or in that particular case, to grant special leave.

There have also been proceedings between the parties involving the intestate estate of Jane's deceased husband. In about September 2008, there were proceedings commenced by the second Defendant, in which she sought, and was granted, letters of administration of her father's estate. These proceedings involved an initial application that a caveat lodged by the Plaintiff demanding that no grant be made without notice to him cease to be in force.

The Plaintiff was unsuccessful in opposing the grant of administration to the second Defendant. As to costs, Young CJ in Eq (as his Honour then was), noted that the second Defendant would be entitled to her reasonable costs of obtaining a grant, including her costs of the application out of the deceased's estate. Given the size of that estate, the whole of the estate passed to Jane.

On 31 January 2008, which was within time provided for under the Family Provision Act 1982, the Plaintiff commenced proceedings seeking an order for provision out of the estate of his father. An amended summons was filed on 15 December 2009, which claimed some inappropriate orders but sought provision out of the notional estate of the deceased. The second Defendant was the Defendant in those proceedings, which were heard by Macready AsJ in February 2010. His Honour delivered reasons for judgment in March 2010.

His Honour determined the proceedings in the Plaintiff's favour. He ordered that he should receive a lump sum of $400,000 out of the notional estate, being designated property that passed to Jane by survivorship. An order was made that $200,000 of that lump sum could be set off against the amounts he may owe to Jane and the balance was to be paid to him. (It would appear that he is likely to receive $200,000.)

The second Defendant has not paid the balance of the lump sum, since the Plaintiff had not vacated the Lindfield property until relatively recently and there was no other notional estate of her father to satisfy the order.

The Plaintiff was asked some questions by me (at T47-52) about the litigation referred to:

"Q. Could you help me on a couple of matters? In relation to the litigation that has gone on involving you, am I right in thinking that the principal litigation which your sister commenced was the litigation to recover the fund of money that was the subject of the trial before Forster J and which went on appeal to the Court of Appeal?

A. That was the stated intention of it, yes.

Q. That was, am I right in saying, that was the only litigation that she commenced, so it was said, on behalf of your mother?

A. No, I believe she also commenced on 1 July 2008 the proceedings to revoke a caveat that I placed.

Q. That was in respect of your mother's home?

A. No, regarding probate of my father's estate. I put a caveat in question that I be informed of any application.

Q. I am sorry, my question was not precise enough. What I am asking you about is in relation to your mother the only litigation which your sister has commenced has related to the recovery of sums that were the subject of orders from Forster J and then the Court of Appeal.

SECOND DEFENDANT: Apart from that litigation before Forster J I did more recently commence proceedings to obtain vacant possession of the house at xxxxxxx xxxxxx.

HIS HONOUR: We will come to that in a moment.

Q. Up until relatively recently am I right in saying that was the only litigation that she had brought against you in your mother's name as it were?

A. Well she also, the probate matter was also raised.

Q. That was in respect of your father's estate?

A. Regarding his estate yes but she did that as her financial manager alleging that.

Q. In relation to those proceedings, subject to what in fact is actually recovered from you, that will form, will it not, part of your mother's estate?

A. That would, yes.

Q. Now in relation to more recent times, the proceedings that she has commenced has related to, as it were, having you vacate the Lindfield property so that that property can be sold?

A. That was the stated intention, yes.

Q. And it is necessary for that property to be sold for a number of reasons but one of which is that it is from the proceeds of sale that the legacy that is payable to you from your father's estate will be paid?

A. Would be paid, yes.

Q. Is that right?

A. That would be a consequence of it, yes.

Q. And to the extent that there is a balance of the proceeds of sale, that would then form part of your mother's estate?

A. Well, yes. The house is -- yes.

Q. Other than those two sets of proceedings, you have told me about the challenge to the caveat that you lodged in respect of your father's estate?

A. Yes, Letters of Administration.

Q. And that was necessitated by the need to have someone administer your father's estate, is that correct?

A. Yes.

Q. Of which, as I think you have agreed with Mr Ellison, the sole beneficiary was your mother?

A. The principal, yes had expected to be my mother.

Q. In relation to those proceedings it was necessary for someone other than you to be the administrator of his estate because ultimately you commenced proceedings under the Family Provision Act for a family provision order, correct?

A. Correct, it is not relevant to these proceedings because in those proceedings I never applied for being the administrator, I applied, I was asking for the Public Trustee to be appointed

...

Q. As it turned out your sister was appointed as the administrator of your father's estate?

A. Yes.

Q. In relation to his estate, the sole proceedings that were commenced were proceedings commenced by you?

A. I filed them. The first hearing was then held by my sister.

Q. And it was necessary for your sister to be the defendant in those proceedings?

A. Yes.

Q. In relation to the matters that Mr Ellison asked you about, in the guardianship tribunal, you were the moving party were you not, that is, to remove your sister from her role as financial manager, is that right?

A. Yes.

Q. There were no proceedings other than the initial proceedings to have a financial manager appointed which were commenced by your sister in the guardianship tribunal?

A. Correct. I did put in an application a few weeks after my sister but that as only on the limited, when I was informed by someone at the tribunal the only way I could oppose it was by putting in my own application.

Q. And in relation to the matters before Palmer J, you were the moving party to have your sister removed as the financial manager?

A. Yes.

Q. Now in relation to your brother, David, he has not commenced any proceedings?

A. No.

Q. At all?

A. No.

Q. Thank you. Now, in the light of what you have told me regarding the proceedings that were commenced against you for recovery of the money forming part of your mother's estate, on the will that is presently in existence, the 1962 will?

A. Yes.

Q. Excuse me putting the question this way but if your mother were to die tomorrow?

A. Yes.

Q. And if the court had not made orders as you have asked them, you and your 2 siblings would benefit from that?

A. Yes.

Q. And similarly you and your 2 siblings would benefit from the recovery of any funds that are obtained from you to satisfy the costs order from her will?

A. Yes.

Q. Is that right?

A. In the same logic, yes.

Q. Could you tell me what personal benefit if any your sister could gain by taking the proceedings that she did against you?

A. Of the main proceedings?

Q. Yes?

A. Well, I mean I am having to divine into someone else's motivation.

Q. No, forget the motivation. How could she have benefited from recovering funds that formed part of, will form part of your mother's estate?

A. Actually it would have of course contribute to our mother's asset which would increase the amount of money she would get a share of after her mother's passing.

Q. But that would be the same that you would get and David would get?

A. Yes.

Q. So, there is no additional benefit to her?

A. Yes I perceive that will, there probably was that expectation although it did not occur, that the judgment in such proceedings would vilify myself essentially as a person of bad character.

Q. So you think there was some non financial benefit that she might achieve?

A. I personally suspect that even though she may or may not be cognate of it, that it is probably largely non financial but on the financial side, if that judgment had given just the normal judgment and had not made a paragraph in it where it says I don't attribute any ill intent to the husband or the son, that or effectively that, the vilified me in a court judge as a person effectively of bad character which I expect would be an extremely rarely used but an available option under the old and the new, under the old inheritance act and the new succession act of character of the person before and after the person's death.

Q. So, you think that was the motivation?

A. I think that might have been an additional thing, yes. I am somewhat concerned about that because I can't understand the rationale wherein 6 months before trial I offer all the funds available.

Q. Don't worry about that?

A. And it is rejected too.

Q. At the time those proceedings were commenced had you threatened to bring family provision proceeding in respect of your father's estate?

A. No. "

These answers attribute a motivation to the second Defendant that is not apparent from the nature of the proceedings, and is not demonstrated by the result of any of the proceedings. With the exception of the proceedings commenced by the Plaintiff for a family provision order in respect of his father's estate, the second Defendant successfully prosecuted, or defended, any proceedings in which the Plaintiff was involved.

The Plaintiff accepted, in cross-examination by Mr Ellison SC, that his interest in those proceedings for a family provision order was in conflict with those of Jane. It was, therefore, neither surprising, nor inappropriate, for the second Defendant, as the administrator of the husband's intestate estate and on behalf of Jane, the sole beneficiary entitled on intestacy, to resist the Plaintiff's claim.

Accordingly, I am satisfied that there was nothing in the conduct of the second Defendant, as a party, in the other litigation that would lead a person with testamentary capacity to alter her will in the way proposed by the Plaintiff. The assertion that these matters provide a basis for his application is not one I accept as consistent with the evidence.

The third Defendant was not, so it would seem, a party to any of the proceedings, although he may have been a witness. There is nothing in his conduct in that litigation that would lead a person with testamentary capacity to alter her will in the way proposed by the Plaintiff. The assertion that these matters provide a basis for his application is not one I accept as consistent with the evidence.

The Plaintiff also raised the issue of what he described as "undue influence" of the second Defendant. By the use of this term, he meant that the second Defendant, who has legal qualifications, gave advice to Jane. He said that it was physically possible for Jane to make another will, but she would not do so because of the nature of her relationship with the second Defendant, which was one of trust, and because the second Defendant was giving legal advice and legal opinion on whether Jane should do so.

The evidence relied upon by the Plaintiff in this regard was a little confusing. He seemed to be asserting that the second Defendant actually gave legal advice to Jane. He seemed to be saying that Jane wished to alter the 1962 Will, but because of the advice she received from the second Defendant, she did not do so. The evidence referred to relating to the Plaintiff's conversation with Jane in May 2007 does not support the Plaintiff's assertion. In any event, the Plaintiff himself stated to Jane that she could make a will leaving her estate "to a cat" if she wanted to.

When he was taken to his evidence where he had stated that the second Defendant had told Jane to change lawyers, he said:

"The other solicitor was her own solicitor and she didn't reveal that fact to [Jane]."

(There is a dispute about this fact, the evidence revealing that the second Defendant states that she mentioned that the lawyers that she recommended had been her parents-in-law's lawyers for many years.)

Undue influence in probate is fraud and "persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will". (See: "Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2 nd Ed.).)

In Bank of Scotland v Bennett [1997] 1 Fam Law R 801, James Munby QC said at pp. 822E-826F:

"Not all influence is undue influence. Even very strong persuasion and 'heavy family pressures' are not, of themselves, sufficient ..."

Even if there was "heavy family pressure" (which I do not consider there was), I am not satisfied that there was any such "undue influence", by the second Defendant of Jane. There appears to be no dispute that Jane had, throughout her adult life, used lawyers, and other professionals, for the legal, and other work, she required to be done. A firm of solicitors, Hunt & Hunt, had been her lawyers for many years. When she ceased to retain that firm, she went to another firm of solicitors from which she sought legal advice.

Even if those solicitors were the second Defendant's solicitors, it does not follow that, in preparing a will for Jane, they would have acted in the second Defendant's interest. They would have been obliged to comply with Jane's instructions as to the terms of any will that was prepared for Jane's execution.

Furthermore, according to the Plaintiff's evidence, the second Defendant did not spend much time with Jane. They did not live together. Thus, Jane would have had the opportunity to alter the 1962 Will at any time if she had wanted to before she lost testamentary capacity. She could have simply not told any of her children that she had done so, if she considered that any one, or other, of them was attempting to influence her, or simply because Jane did not want him, or her, to know.

Matters the Subject of Dispute

The Plaintiff also gave evidence about the conduct of the second and third Defendants in 2007 that he regarded as very important to the determination of the case, and which conduct, he submitted, would be reasonably likely to lead Jane, if she had testamentary capacity, to make a will in the terms that he had proposed.

His criticisms about their conduct seem to have been the source of complaint for some time. At the first Guardianship Tribunal hearing, in September 2007, the Plaintiff stated that he had concerns about his siblings "apparent indifference to mother's wishes and quality of her life": Ex A 297.

His evidence, to this Court, on the first day of the hearing (at T 52-53), was as follows:

"Q. ... You have told Mr Ellison that you accept that at the present time you do not dispute that your mother still loves each of your siblings as she loves you?

A. Yes they are her children, I mean for heaven's sake. It is my understanding is that both of my parents, as I was, happened to have been raised on a principle if you like, where we tend to believe in truth, love, aid in that order. Truth being honest with the universe. Love because really at the end of the day what the heck's the purpose of anything. If it isn't about other human beings and care and concern and aid is a necessary expression of the second, the first thing being truthful. If a member of the family does something which quite frankly is reprehensible, we expect, we'd expect them, we don't, we expect people to be at accountable for their behaviour, for their decisions, for their conduct.

Q. And the reprehensible conduct you attribute to your sister is the conduct in proceeding against you?

A. No. Well, no, no.

Q. It is not that?

A. No, no, no.

Q. What is it? What is the reprehensible conduct that you attribute to your sister?

A. Well, alleging that our mother was incapable and alleging that she had been an Alzheimer's patient for 5 years.

Q. Alleging she had been an Alzheimer's sufferer for 5 year. Yes?

A. That she was aggressive and when my sister was challenged on that she pushed the idea that our mother was unusually what was the other, agitated when confronted and then alleged to the doctors who wanted to care for my mother that the family at, first of all, alleged that the family had been asking for our mother to be moved to a dementia facility or an insane asylum, however you want to refer to it and alleged that the family was consenting to the hospital using physical and chemical restraint on Jane which was done before the hospital had interviewed Jane itself.

Q. Anything else?

A. The daughter's hearsay.

Q. Chemical restraint. Is that the extent of it?

A. That was the initial starting point and then it was transpired, it transpired that there were allegations not, allegations to the hospital at the same time alleging I was suicidal and schizophrenic, right, which I don't take offence to in these proceedings on a personal basis, right? What I take offence to that on is that I was Jane's chosen carer and her only surviving domestic relation. I was the person she was relying on and I was covertly discredited to the hospital and to the doctors. The doctors in good faith have acted on the daughter's on the medical history that the daughter alleged. And that in turn has then led on to the social workers at the hospital which was led by a

Q. Don't worry about what it led to. By the social workers?

A. Yes, Robyn Ryner.

Q. Just tell me what they did?

A. It with would appear from the

Q. What did it lead to? Concentrate?

A. She instructed them on the evidence to give to the guardianship tribunal. My sister and my brother instructed those hospital social workers on the evidence to give the guardianship tribunal in order to convince the guardianship tribunal there was such a dramatic situation and that they just had to save Jane from myself and declare the woman incapable even though they did not actually have medical evidence to support this. All they had was one letter from a Chinese doctor who was not Jane's doctor. Both the doctors, Jane's doctors distanced themselves from this whole affair. Dr Jamison and Dr Demmarra.

Q. I think I understand?

A. I will add one thing. That Dr Polly who wrote the letter is the same doctor who declared Jane was demented and advised go public, recommendation that the hospital should examine me as well the day before the conversation that I videoed with my mother the next morning which I did because I attended a meeting at which my sister said nothing. The others pushed. At the end of that meeting I came to the conclusion that I now had grounds to fear that my mother's civil rights were being stripped and on that basis my response was I went straight home, I went to the Law Society data base. I found no reference to any elder law specialist. I had a think about it and I rang up Alzheimer's Australia. Alzheimer's Australia came up with the name of one solicitor who had given some talks about elder law. I got the name of his practice, rang that up and he kindly telephoned me that evening."

In an Health Professional Assessment for a Carer Allowance, lodged on behalf of the Plaintiff on 30 August 2006, in respect of Jane, next to the heading "Neurological", there is a "X" placed in the box identifying "Dementia - Alzheimer's disease". There is a similar marking acknowledging that she has "intellectual" disabilities. She was also described as "cognitively impaired". The report appears to have been signed by Dr G Robert-Smith.

There is an email dated 28 October 2006, from the second Defendant to the Plaintiff, which refers to a website on dementia and the suggestion was made that "you check it out".

Having read the Hospital records, a copy of which formed part of the Plaintiff's case, it is clear that in July 2007, Jane had dementia; at times, she was confused and anxious; she had urinary and (whilst in hospital) faecal incontinence; at home, she had been unable to attend a number of activities of daily living, such as showering, washing clothes, and doing laundry; she had refused to drink sufficient fluids; she lacked insight and appreciation into her condition, her needs and their management. She was, and could be, resistant to medical interventions. At times, she did not remember that her husband (of almost 50 years) had died. She had been found wandering whilst in hospital and could become easily disoriented, requiring prompting and redirection. She refused personal care, climbed out of bed even if the bed rails were up, and was unsettled at times, at night.

Whether Jane had suffered dementia for 5 years (as some of the Hospital records reveal) and even if the second Defendant had informed the Hospital of this inaccurately (which has not been established), it is not conduct which could be classed as "reprehensible". It was not the duration of her suffering from the condition that was important. It was that she was suffering from dementia at the time of her admission to the Hospital.

In an application made to the Guardianship Tribunal by the Plaintiff in respect of Jane, in which he sought to be appointed as her financial manager and guardian, he described Jane's disability as dementia, although he identified it as being more severe until 10 July 2007 due to a urinary tract infection from which she was suffering.

In a report dated 31 August 2007, addressed to the Guardianship Tribunal, Dr Samantha Lander stated:

"This is to confirm that I have seen [Jane] on 2 occasions as a general practitioner. The first of these was on 8 May 2007. At this visit she had been brought in by her son, [the Plaintiff], and her husband. They expressed concerns regarding her health and stated that she had previously refused to see a doctor. On questioning, [Jane] was oriented to person, but not to place or time. She was very resistant to any questioning or examination, and verbally aggressive. I made a presumptive diagnosis of dementia at this visit, but could not fully assess her. Hence I referred her to the Aged Care Assessment Service for further assessment.

I reviewed [Jane] a week later on 14 May 2007. At this second visit she remained resistant to any intervention."

In a report dated 24 July 2007, Dr Stephanie Polley, an Advanced Trainee Geriatric Medicine, Hornsby Ku-ring-gai Health Service states that "[W]hilst in hospital, [Jane] has been found to have severe dementia of the Alzheimer's type ... and that [C]ognitive testing in hospital ... revealed a Folstein MMSE of 10/30. She is unaware of her surroundings and has poor comprehension and retention of information."

From this report, it can be seen that the condition from which Jane was then suffering was described as "severe". That suggests that it was of reasonably long standing (although how long, in fact, is not possible, or necessary, to determine).

The Plaintiff attributed to the second Defendant a reference in the Hospital records, under the heading ""Nursing Assessment", that Jane "can become aggressive" (Ex A 111). He asserts that the second Defendant gave that description of Jane to the nursing staff, and that it was wrong. The second Defendant denied that she had given that information as alleged and says that she had not observed such behaviour prior to that time.

I note that in the Health Professional Assessment for a Carer Allowance referred to previously, it was stated next to the category "Display aggression towards self or others", there is an "X" placed in the box marked "Never".

I note that there is a reference to Jane being "verbally aggressive" on 8 May 2007, in the report of Dr Lander (referred to above). There are also references to "occasional aggression" (in Ex A 121 - 6 July 2007), and to Jane "becoming aggressive" (Ex A 140 - 13 July 2007). In addition, a social worker's report dated 27 July 2007, mentions that she "can become aggressive if staff attempt to assist with her care and can be intrusive of other patients' (sic) space and property" (Ex A 241).

The words referred to in the evidence complained of are corroborated by contemporaneous records, both before and after the date on which the notation was made.

The Plaintiff also criticizes the second and third Defendants' desire for Jane to be accommodated in a nursing home facility. By July 2007, I am satisfied, despite statements by him to the contrary, then, and subsequently, that the Plaintiff was ill-equipped to care for Jane on his own. At least, initially, both he and the second Defendant wanted Jane to be placed somewhere safe where she could be looked after. This was clearly in her best interests.

At the time the application to the Guardianship Tribunal was made (about 13 July 2007), it was clear that disputes about Jane's care were likely to continue between the Plaintiff and the second Defendant (observed by the social worker in the Hospital). It was equally clear that a guardian needed to be appointed to make medical decisions for Jane and a financial manager was required to manage Jane's financial affairs.

In relation to the appointment of a guardian, that was the view Dr Polley, expressed in her report dated 24 July 2007, addressed to the Guardianship Tribunal. That Jane required financial management, guardianship and nursing home care was also the view expressed by Elaine Hume, Social Worker, in a report dated 27 July 2007, addressed to the Guardianship Tribunal.

Another complaint made by the Plaintiff, related to Jane being given a drug "Risperidone". He submitted that this drug was not safe, or effective, for an elderly person and that it was the second Defendant who had suggested that it be prescribed for Jane.

I do not accept that the second Defendant was so involved in prescribing medication for Jane. It was not made clear by the Plaintiff how she would come to have knowledge of the drug, or when, how, and to whom, she could have suggested that it be prescribed, and any reasons why that person would follow the suggestion.

Even if the second Defendant had made such a suggestion (which has not been established), it is highly unlikely that medical staff at the Hospital, or at the Nursing Home to which Jane was transferred, and where she was given the drug (Ex A 761, 764), would permit a drug to be given to her that she should not take.

On 11 July 2007, the Plaintiff sought legal advice. He telephoned a firm of solicitors and spoke with a solicitor with whom he discussed "what has happened with the status of [Jane] at Hornsby Hospital" (Ex. A (179). That solicitor, apparently, telephoned the second Defendant on 12 July 2007 and discussed "family issues regarding [Jane] and her welfare". There were other telephone calls between them subsequently.

The Plaintiff's evidence was that he sought legal advice because he became concerned about Jane's rights being over-ridden by people who thought that they were serving her greater medical needs. His concerns, whilst they may have been well intentioned, seem to have been unjustified. I have not read anything that leads to the view that the treatment administered to Jane was unnecessary or inappropriate.

The contemporaneous records to which I have referred do not support the matters about which the Plaintiff complains. Dr Polley, for example, confirmed "it is in [Jane's] best interest if this matter is attended to on an urgent basis so that she can be transferred to a safer environment than the acute hospital setting". The social worker expressed a similar view.

Finally, I refer to the suggestion by the Plaintiff that the second Defendant "covertly" made allegations to the Hospital that he was suicidal and schizophrenic, and that his position as the carer of Jane should be ignored.

The evidence tendered by the Plaintiff himself, does not support this assertion. As long ago as May 1988, there is information in medical records concerning the mental state of the Plaintiff. One, dated 31 May 1988, refers to the Mental Health Services being "contacted by concerned mother" (Jane) about the mental state of the Plaintiff. A Medical Certificate (issued under Schedule 2 of the Mental Health Act 1958) of the same date describes the Plaintiff as appearing "to be psychotic and unable to manage his affairs".

In May 2007, the Plaintiff declined intervention when Mercy Community Care referred him to the NSW Health service. A summary of events referring to the Plaintiff's conduct is referred to in a "Report for the Guardianship Tribunal" dated 24 July 2007 from Tracy Kemmett, a care co-ordinator with Mercy Community Care (Complex Care Team). There is no relevant reference to the second Defendant.

In a document from NSW Health dated 9 July 2007, there is a reference to the Plaintiff "presumed to have a mental illness & has been referred to service before ... Service is concerned about [the Plaintiff's] ms (mental state) & ongoing safety". There was also a reference the Plaintiff then being in crisis and distressed. Again, there is no reference to the second Defendant.

In each of these reports, there are specific references to the Plaintiff's conduct as observed by professional third parties not associated with the second Defendant. Having read these reports, I am satisfied that it was the Plaintiff's own conduct that gave rise to the concerns expressed about him, and not any "covert", or other, conduct of the second Defendant.

I am satisfied that there was nothing in the conduct of the second Defendant, which the Plaintiff described as "reprehensible", that would lead a person with testamentary capacity to alter her will in the way proposed by the Plaintiff. I am also satisfied that the second Defendant, and hence, the third Defendant, acted in what each perceived to be, and what, in hindsight, was, in Jane's best interests. The criticisms made of each of them, by the Plaintiff in his oral evidence and in other documents, are, in my view, unwarranted and unjustified.

In relation to the third Defendant's conduct, the Plaintiff's evidence (at T53-54) is instructive:

"Q. ... Apart from the fact that you say your brother was involved in relation to what the guardianship tribunal did, you have not mentioned any other conduct of your brother?

A. His, in my mind the case regarding just in his inheritance would be the most problematic.

Q. Sorry?

A. The case regarding my brother would be the most problematic.

Q. What does that mean?

A. It is not as strong.

Q. But what does that mean?

A. He appears to have been passive and only appears to have been negligence on his part that he signed in with the guardianship application but more importantly signed into is for Jane at the nursing home in August 2007 and did not do anything to check whether or not the treatment and medications and so forth were appropriate and that was the responsibility they had was being nominated for as the proposed guardian.

Q. But at least since September 2007 the person with the responsibility?

A. Became the Public Guardian.

Q. For your mother has been the Public Guardian?

A. Yes and I brought it to the Public Guardian's attention.

Q. But since September 2007 the person responsible as the guardian of your mother and I think it extends to determine what health care and major and minor medical and dental treatment she receives is the Public Guardian?

A. Yes"

The submission that the matters to which I have referred provide a basis for his application to this Court being granted is one that I do not accept as consistent with the evidence read in the application.

Determination

Should leave be Granted

The Court is not to make an order under s 18, unless the person in respect of whom the application is made is alive when the order is made. In this case, Jane is alive at the date of the hearing.

I shall deal, firstly, with the application for leave by referring specifically to the matters referred to in s 19. Then, I shall turn to s 22 to determine whether I am satisfied of the matters referred to.

(a) a written statement of the general nature of the application and the reasons for making it

The Plaintiff states that his application is one that will give effect to Jane's testamentary intention to make a new will since the 1990's in light of facts that he says have become evident since Jane lost capacity.

In addition, he says that the conduct of the second and third Defendants has been such over the years that Jane, if she had capacity, would want to make a new will in terms of the proposed statutory will.

In my view, these assertions, even if they are rejected, satisfy the sub-section.

(b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought

The parties to the proceedings do not dispute that Jane lacks testamentary capacity. In any event, there is a report dated 6 May 2011, tendered on behalf of Jane, which confirms her residency in the Aldersgate House Nursing Home, in the dementia specific unit, since December 2008. The diagnosis of dementia of the Alzheimer's type remains clear. Jane remains dependent on others for all activities of daily living.

The report states:

"Her main diagnosis is Alzheimer's Disease demonstrated by disorientation to time place and person, incontinence, aggression both verbal and physical and inability to initiate and carry out activities of daily living independently.

Nursing staff prompt and assist [Jane] with all aspects of daily living such as personal hygiene, toileting and feeding. She does not like to be handled and will lash out at staff when they shower her. She is also restless and wanders for much of the day."

(c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought

I have dealt with this earlier in these reasons.

(d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval

A draft of the proposed statutory will is an annexure to the Plaintiff's Summons. I have dealt with its broad effect.

Whilst there was no draft, the alternative proposed statutory will, being an amendment of the 1962 Will which was raised during submissions, would simply follow the form of the 1962 with the omission of paragraphs that are no longer relevant and the insertion of a reference to the NSW Trustee & Guardian as the named executor.

(e) any evidence available to the applicant of the person's wishes

As stated in The New South Wales Law Reform Commission Report, at 2.21, this factor is intended to reinforce the importance which should be attached to giving effect to the person's wishes in so far as they are ascertainable. A person lacking testamentary capacity may nonetheless have clearly indicated his, or her, own wishes, but, where this is not the case, friends, relatives and other persons should be permitted to give evidence of the person's wishes as expressed by word or conduct.

The Plaintiff relies upon the following matters to establish Jane's wishes. Firstly, he refers to a conversation between himself and Jane in, or about 1992, which occurred whilst he was working in the back yard. She said:

"[Plaintiff] you've always been good helping with the animals and this property, and your father and I appreciate the help you've been with our interests. We've decided we want you to inherit this property."

"You should consider Milray Street as being yours. You will inherit Milray Street."

"Please don't talk with me about this. You should speak to your solicitors Hunt & Hunt about whatever you wish to do. I would prefer not to know what is in the Will."

He refers to another conversation with Jane in about late 1999, at an inspection of the Lindfield property prior to its purchase:

'The house isn't much, but the land has value and will help set you up. I want this to be your father and my final home, and for you to have the property after.'"

He also relies upon conversations between Jane and Heather Mary Jeffrey. Specifically, the conversations were in the following terms:

"...I recall [Jane] saying more than once words to the effect "I was able to help all of my children buy a house but I want [the Plaintiff] to inherit this house, provided that he cares for the orchids because he has been a great deal of help to me, so I think he deserves to inherit this house". On one occasion [Jane] said words to the effect "[the Plaintiff] being here makes all the difference for me, he's a big help to me."

Finally, the Plaintiff relies upon a conversation between Jane and Michael Charles Bourke, a friend of the Plaintiff. The conversation is said to have taken place in about mid-May 2007. Relevantly, it included the following:

"Our family is still divided. [The Plaintiff's] sister is successful and well-off and does not need any inheritance from the family. But the Plaintiff's] brother [the third Defendant] has long been estranged from the family. I am still angry at [the third Defendant] for his abuse of [the Plaintiff] when they were children. [The third Defendant] will receive nothing from the family when I am gone. I remember an incident where [the third Defendant] held [the Plaintiff's] head upside down in the toilet. Promise me you won't tell [the Plaintiff] I had told you about this incident. I don't want to stir up old resentments in [the Plaintiff]."

In addition, the Plaintiff points to the fact that he looked after his father and Jane until 2007.

The second Defendant refers to a number of conversations with Jane about testamentary wishes. Her evidence is that on each occasion that Jane discussed how her estate was to be divided, she referred to the Plaintiff, the second Defendant and the third Defendant inheriting the whole estate equally. She says that Jane spoke to her about the importance of providing for one's children.

However, the second Defendant did inform the Guardianship Tribunal, in an attachment to an email dated 12 September 2007, that:

"About ten or eleven years ago [Jane] discussed separately with [the second Defendant and with [the third Defendant] the idea of buying [the Plaintiff] somewhere of his own to live. Her thoughts were to buy him a two bedroom unit. Karen and David do not know with certainty why she did not do so, but it was soon after this time that she loaned [the Plaintiff] money to start his own business.

Without doubt, [Jane] would not want [the Plaintiff] "thrown out on the street" but would want to help him in some way to find suitable, secure accommodation."

The second Defendant also gives specific evidence about several conversations with Jane, between 2000 and 2005, in relation to the Lindfield property, in which conversations, Jane said:

"This house will provide a good nest egg for you and your brothers. In years to come developers will be interested in this property because of the location and pay a good price. You and your brothers will each get a good nest egg which will set you up nicely for the future."

In the Guardianship Tribunal proceedings, the second Defendant referred to being "mindful of what my mother's wishes would be in respect to him, and, in particular that she would wish to provide for him in some way": Ex A 287. She also gave evidence that "her mother would want to ensure that [the Plaintiff] had somewhere to live": Ex A 302; 303.

The second Defendant gives evidence of her repeated conversations with the Plaintiff in which he informed her that Jane wished to change her will to make greater provision for him. However, she says that on no occasion was Jane present during these conversations.

Jane did not ever speak to the second Defendant about making provision for any charity in her will. There is no charity beneficiary named in the 1962 Will.

The third Defendant states that Jane never told him that he would not receive an inheritance, or that he, or the second Defendant, would be excluded entirely as beneficiaries in her will.

It is clear that some of what Jane told each of her children and others did not accord with the terms of the 1962 Will. As I have stated, Jane's three children were only beneficiaries if her husband did not survive Jane. Also, the second Defendant was not named as the executrix.

In the Guardianship Tribunal, apparently, the evidence of all of Jane's children was "that she would not want a public official acting as her substitute decision maker": Ex A 300. The third Defendant is noted as stating his belief that Jane "would want the role [of financial manager] to be given to someone in the family rather than a government body: Ex A 303.

(f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity

The parties all agree that the nature of Jane's condition makes it unlikely that she will ever regain testamentary capacity.

(g) any evidence available to the applicant of the terms of any will previously made by the person

I have referred to the 1962 Will, which is Jane's only Will. In the events that have happened, under that Will, the whole of her estate would be divided between the Plaintiff, the second Defendant and the third Defendant, equally, assuming that each survived Jane.

(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person

On intestacy, the whole of Jane's estate would be divided between the Plaintiff, the second Defendant and the third Defendant, equally, assuming that each survived Jane. There would be no other persons entitled on intestacy if each survived Jane. However, if the second Defendant did not, on intestacy, her share would pass to her three children. If the third Defendant did not, then, his share would pass to his two children. If the Plaintiff did not, his share would pass to his siblings.

(i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person

This sub-section refers to the likelihood of an application for a family provision order being made upon the death of Jane. Each of the Plaintiff, the second Defendant and the third Defendant, as a child of Jane, is an eligible person with s 57(1)(c) of the Act. There are no other persons who are, or who may be, eligible persons.

It is likely that one, or more, of Jane's children, will make an application for such an order. In fact, the Plaintiff discloses such an intention in his affidavit. The second Defendant and/or the third Defendant may make such a claim if the statutory will in the form proposed by the Plaintiff is made and they receive no share of her estate. Certainly each states, on oath, that her, and his, financial and material circumstances are apt for the making of a claim.

It follows that whatever the result of this application, an application being made under Chapter 3 of this Act in respect of the property of Jane will be made. This seems to be the likelihood, despite the fact that, assuming the value of Jane's estate is as estimated (leaving aside any claims that may be made against one, or more, of her children), each will be entitled to, on present estimates of value, at least $600,000.

(j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person

There is some historical evidence as well as some other evidence of the financial and material circumstances of the Plaintiff and of his relationship with Jane:

(i) He is unmarried and has no issue.

(ii) He is currently unemployed and has been for a number of years.

(iii) He lived in his parents' home, virtually rent, or occupation fee, free, until earlier this year.

(iv) He received financial and other assistance from his parents, including amounts that were used to fund his computer business. That included them borrowing funds, which debt was secured on their property (sold prior to the purchase of the Lindfield property). The amount repaid was in the order of $286,000.

(v) He stated that he had no substantial assets, other than what he will receive when the Lindfield property is sold, being the payment of the legacy that he received out of his father's estate. This seems to be supported by the evidence of the second Defendant.

(vi) He had a close relationship with his parents and was Jane's carer for a number of years.

There is some historical, as well as some other, evidence of the financial and material circumstances of the second Defendant and of her relationship with Jane:

(i) She moved out of the home of her parents, permanently, in early 1985. She married a short time later.

(ii) She remains married and has three adult children.

(iii) In 1982, she completed her legal training and was admitted as a solicitor. Since about 1986, she does not appear to have worked as a solicitor.

(iv) She says that she always had a mutually supportive relationship with her parents and provided them with physical, and other, assistance whenever required. She provides examples of the assistance she provided. She says that she was always on good terms with each of them and has never been estranged or alienated from them.

(v) In 1991, the second Defendant received a gift of $35,000 from Jane, which she applied to reduce the debt secured by mortgage on the second Defendant's and her husband's home.

(vi) From the time Jane was admitted to nursing home care, in 2007, until 2009, the second Defendant says that she visited her twice every week. Since then, it has been, reliably, once a week. She assists her at the nursing home, by checking her clothing and other supplies and replenishing them when necessary, consulting with nursing staff, when and as appropriate, and otherwise endeavouring to ensure that her needs are being met.

(vii) As Jane's financial manager, the second Defendant ensures that her financial affairs are managed in an orderly manner, that all her bills are paid, in a timely manner, that she is supplied with appropriate goods and services and that she is properly cared for.

(viii) The second Defendant has not disclosed her and/or her husband's financial and material circumstances. She does, however, state that the home in which they live requires substantial repairs and renovation. She says that her family (now consisting of 5 adults) finds it cramped and uncomfortable, but that she and her husband are unable to extend the home or move elsewhere.

(ix) She also states that she is now employed for only 2 days per week, with the result that there has been a "notable reduction of my family's income". She says that she has been unable to find alternative employment to supplement the family's income.

There is some historical, as well as some other, evidence of the financial and material circumstances of the third Defendant and of his relationship with Jane:

(i) The third Defendant moved out of home in his early 20's. Thereafter, he visited his parents regularly and assisted them, from time to time giving them considerable practical assistance around the home.

(ii) He is married with two children aged 13 years and 10 years respectively. He and his wife are separated. The third Defendant spends some time with each of his children and contributes towards the costs of their schooling, clothing and anything else that he can that is required by them.

(iii) The third Defendant suffers from dyslexia. However, he has always had an interest in, and ability to complete, manual activities. Following completion of high school (in Year 10), he obtained, in 1980, an Electronics and Communications Certificate from TAFE.

(iv) He, too, was always on good terms with each of his parents and has never been estranged or alienated from them, although he did not visit them for about the last two years of his father's life. (This may have been due to matrimonial problems that the third Defendant was going through at that time.)

(v) In 1986, Jane gave him $5,000. In 1991, Jane gave $20,000 to the third Defendant to assist him to reduce the debt secured by mortgage on his home. He believes that, in all, he has received about $30,000 to $35,000 from Jane.

(vi) The third Defendant was employed by the University of New South Wales, as a senior Technical Officer, between 1980 and 2008 when he was made redundant. He does occasional electronic consulting work for some of the academics at the University. He is currently unemployed but is working completing renovations on his home.

(vii) As part of a property settlement with his wife, she has received $80,000 from his superannuation fund, the proceeds of sale of a property in Queensland ($345,000), shares with a value of $50,000, and he is required to pay an additional $20,000 over a 12-month period. He will retain the former matrimonial home, which is encumbered ($280,000). He is also liable to capital gains tax of $14,000. He does not disclose the current value of the former matrimonial home.

(viii) The third Defendant's home is heavily mortgaged. Currently, he is struggling to meet his mortgage repayments. Shortly, he will be required to pay his wife a lump sum (as part of their property settlement), and if he is unable to increase his mortgage, will be required to sell his home.

Furthermore, although there is some dispute about the relationship of each of the second and third Defendant and Jane, I am satisfied, because of the evidence of the Plaintiff referred to above, that there is nothing in the evidence to suggest that her relationship with either had altered before she lost testamentary capacity.

(k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will

The Plaintiff proposes a number of different charities as substitutionary beneficiaries in the event that he does not survive Jane. There is no evidence of Jane's "connection" during her lifetime with any of these charities. I have referred to the evidence of the second Defendant, not disputed by the Plaintiff, about this.

(l) any other facts of which the applicant is aware that are relevant to the application

There are no additional facts that are relevant to the application.

Whether Leave should be Granted

Section 20 of the Act provides that on hearing an application for leave the Court may give leave and allow the application for leave to proceed as an application for an order under s 18, and if satisfied of the matters set out in s 22, make the order.

As was explained in Re Fenwick , where the evidence in the leave application reveals a state of affairs that is unlikely to change by the time an application for a final order could be made, then it is appropriate at one and the same time to consider the grant of leave under s 19 and to proceed with the consideration of whether a final order should be made.

Therefore, I turn, finally, to s 22 of the Act. The Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied of each of the matters referred to in this section.

There can be, and is, no question in the present case that Jane has irretrievably lost testamentary capacity, so that the requirement of s 22(a) of the Act is satisfied. Accordingly, this is a "lost capacity" case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is said to have expressed some testamentary wishes in relation to the circumstances sufficient to warrant an application for a statutory will: Re Fenwick , at [160].

Or, as was said in Re the Estate of Crawley [2010] NSWSC 618, at [7]:

"This is a "lost capacity" case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed or is incapable of expressing, any testamentary intention to deal with the changed circumstances"

I am satisfied, for the reasons expressed earlier, that the Plaintiff, as the applicant for leave, is an appropriate person to make the application, so that the requirement of s 22(d) of the Act is satisfied.

I am also satisfied that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought (s 22(e) of the Act).

The most difficult issue raised by s 22 in the present case relates to whether I am satisfied of the matter stated in s 22(b).

Leaving aside actually being able to establish that the proposed statutory will is one that would have been made by Jane if she had testamentary capacity (e.g. if she had given final instructions for a will before losing testamentary capacity) which is not the case here, what is required by s 22(b) is an accurate reflection of Jane's testamentary intentions, or likely testamentary intentions, and, that the proposed statutory will is reasonably likely to be one that Jane would have made if she had testamentary capacity.

I am not satisfied of either matter. A will leaving the whole of her estate to the Plaintiff and omitting her two other children does not seem to have ever been Jane's intention. Thus, the proposed statutory will, in its present form, is not one that Jane would have, or would be reasonably likely to have, made, if she had testamentary capacity.

I come to this view for the following reasons:

(a) The Plaintiff's evidence that I have quoted is inconsistent with the terms of the statutory will proposed. In fact, the only evidence that suggests that the second and third Defendants ought not to receive any provision was a statement alleged to have been made by Jane's husband: Ex A 543. There is no evidence given by the Plaintiff that Jane agreed with that statement. There is the evidence of Mr Bourke relating to the omission completely of the third Defendant.

(b) The 1962 Will was not altered at any time, despite the fact that she had more than enough opportunity to do so, particularly in the 1990's when several of the conversations relied upon by the Plaintiff occurred. Jane had opportunity, in about 2000, when she was instructing solicitors about the sale and purchase of real estate, to alter the 1962 Will. She did not do so.

(c) The terms of the 1962 Will afford a clear, coherent, rational, sensible, responsible and realisable expression of Jane's wishes when she had capacity. They clearly indicate an intention to benefit her only three children equally. Those wishes were maintained for 45 years.

(d) According to the Plaintiff's evidence, Jane said, in May 2007, after a discussion about what the second Defendant had said: "Well, I'm not nuts, I'll write my Will now" (Ex A 550). However, even then, she did not do so.

(e) Prior to Jane losing capacity, the Plaintiff received significant financial benefits from his parents. It seems like they lost the amount of $286,000 that had been invested in a business in which he was involved.

(f) In challenging his father's Will, and in succeeding in his claim, the Plaintiff received a share of property ($400,000) that would have, otherwise, passed to Jane. Some, or all, of that share may have remained in existence at the date of her death. Certainly, Jane would have had access to it, if that was necessary, during her lifetime.

(g) Other proceedings have had to be commenced against the Plaintiff, by the second Defendant, on Jane's behalf, which have resulted in a judgment ($100,055 and interest) as well as costs orders being made against the Plaintiff. The costs, on an indemnity basis, are estimated to be about $271,488 (the disputed funds proceedings), $121,000 (the Court of Appeal proceedings arising from disputed funds proceedings). These costs are presently being assessed.

(h) Other costs incurred on behalf of Jane, include $862 (High Court proceedings arising from disputed funds proceedings), and the costs of the proceedings to obtain vacant possession of Jane's land ($12,233).

(i) The costs incurred by the estate in obtaining administration ($11,638) and in defending the Plaintiff's claim, in respect of his father's estate, were $101,438. Whilst it may have been necessary to obtain administration, the costs of the contested proceedings have reduced the amount to which Jane is entitled as the sole beneficiary of her husband's estate or on survivorship to jointly held property.

(j) There is no objectively provable evidence which leads me to conclude that there has been any disentitling conduct on the part of either the second Defendant, or the third Defendant, that would lead to the conclusion that Jane would wish to reduce her, or his, equal share of her estate. I do not accept the complaints of the Plaintiff as having been established.

I have not forgotten the statements by the Plaintiff that Jane knew that the second Defendant and the third Defendant each owned a home, whilst he did not, and for this reason, she wished to increase his entitlement under her will. However, this state of affairs had been known, and discussed, by her, for many years prior to her losing capacity, and there is no evidence that she ever took any step to alter the 1962 Will to give effect to this knowledge and what it said to be the stated wish.

In any event, there is no evidence upon which the Plaintiff has relied that would lead me to conclude that his entitlement under the 1962 Will is insufficient to provide him with secure accommodation. One would have thought that if that was being alleged, there would be some evidence of it.

I am not satisfied that, with the exception of appointing an executor, Jane's likely intention would be to change the 1962 Will at all.

In the circumstances, I am not satisfied that it is, or may be, appropriate for an order to be made so the requirements in s 22(c) is not established.

It follows, then, that leave under s 19(1) of the Act to make the application for the order should be refused.

Whether Leave should be Granted - Alternative claim

I have considered the question of the alternative proposed statutory Will, being alterations to the 1962 Will, referred to above.

Whilst I consider that Jane would wish to minimize conflicts between her children, I am unable to conclude, on the evidence before me, that the alteration of the 1962 Will, by inserting the NSW Trustee & Guardian as the executor, is, or is reasonably likely to be, one that would have been made by Jane if she had testamentary capacity.

On the alternative claim, and in the circumstances, I am also not satisfied that it is, or may be, appropriate for an order to be made.

It follows, then, that leave to make the application for the order under s 19(1) of the Act on the alternative claim should also be refused.

In the circumstances, I order that the Summons be dismissed.

I was requested to deliver these reasons and permit the parties to consider whether the costs of the proceedings, particularly so far as they refer to Jane's costs, could be agreed, failing which I shall be asked to determine the issue of costs.

I shall stand the proceedings over to a date to be agreed.

**********

Decision last updated: 20 July 2011

Medium Neutral Citation:	Re Will of Jane [2011] NSWSC 624
Hearing dates:	22 June 2011
Decision date:	20 July 2011
Jurisdiction:	Equity Division - Probate List
Before:	Hallen AsJ
Decision:	(a) Leave under s 19(1) of the Succession Act 2006 to make the application for the order, as well as for the alternative order for a statutory will is refused. (b) Order that the Summons be dismissed. (c) Stand the proceedings over to a date to be agreed for argument, if any, as to costs.
Catchwords:	Application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - NSW Trustee & Guardian appointed to represent first Defendant - Plaintiff, second and third Defendants are children of first Defendant - All Defendants oppose Plaintiff's application
Legislation Cited:	Family Provision Act 1982 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 Succession Act 2006
Cases Cited:	AB v CB [2009] NSWSC 680 Bank of Scotland v Bennett [1997] 1 Fam Law R 801 Banks v Goodfellow (1870) LR 5 QB 549 Crawley, Re the Estate of [2010] NSWSC 618 Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 Fenwick, Re (2009) 76 NSWLR 22 Jeavons v Chapman (No 2) [2009] SASC 3 Johnson v NSW Guardianship Tribunal [2009] NSWSC 664 Johnson v Smith [2010] NSWSC 125 Kelso, Application by Peter Leslie [2010] NSWSC 357 Nock v Austin (1918) 25 CLR 519 Sharp v Adam [2006] EWCA 449; [2006] WTLR 1059 Sportsbet Pty Ltd v NSW (No 9) [2010] FCA 31
Texts Cited:	Shorter Oxford English Dictionary Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2nd Ed)
Category:	Principal judgment
Parties:	Plaintiff "Jane" (first Defendant) second Defendant third Defendant
Representation:	Counsel: Plaintiff appeared in person Mr L Ellison SC (first Defendant) Second Defendant appeared in person Third Defendant appeared in person Solicitors: Plaintiff appeared in person NSW Trustee & Guardian (first Defendant) Second Defendant appeared in person Third Defendant appeared in person
File Number(s):	2010/381344

(a)	Lindfield property (est):	$1,500,000
(b)	Bank accounts:	$ 83,915
(c)	Westpac term deposit (est):	$ 215,000
(d)	Commonwealth Bank term deposit (est):	$ 76,923
(e)	Commonwealth Bank term deposit (est):	$ 55,000
(f)	Company shares (est):	$ 30,034
(g)	NSW Trustee & Guardian account (est):	$ 114
Total:	$ 1,960,987