State Trustees Limited v Cooper (a pseudonym) - [2021] VSC 712

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 03534

STATE TRUSTEES LIMITED (as administrator of Jim Holland (a pseudonym))	Plaintiff
v
RICK COOPER (a pseudonym)	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2021
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	State Trustees Limited v Cooper (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VSC 712

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WILLS & ESTATES — Court authorisation for the making of a statutory will — Propositus lacks testamentary capacity — Where applicant is the administrator of the estate — Statutory will made — Wills Act 1997 s 21B — Re Gillam [2016] VSC 5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Nevin Lenne & Gross
For the Defendant	No appearance

HIS HONOUR:

The plaintiff, State Trustees Limited (State Trustees), is the administrator of Mr Jim Holland[1] (Jim) and seeks an order authorising a will to be made in the terms set out in Exhibit AG:1 of the affidavit of Anna Grogan sworn 15 October 2021 (the proposed will).
[1]A pseudonym.

I made orders on 19 October 2021 authorising the making of the proposed will. These are my reasons for judgment for making that order.

Factual background

Jim is 75 years old. He has an acquired brain injury from childhood and is in the end stages of chronic kidney disease. His treating general practitioner, Dr Rowan Purtell, estimates that Jim is likely to die within six to twelve months. Dr Russell Auwardt, a nephrologist who has treated Jim from 2015, considers that Jim has been less amendable to treatment and less interested in his health since his wife died.

Jim’s wife, Elizabeth, died 4-5 years ago. They had been in a relationship for 13-15 years. Jim does not have any children. Elizabeth had a brother, Tim Moore (Tim), and a sister, Jennifer Pideski (Jenny). Jim had two brothers, both deceased, one of whom had a son, Rick Cooper,[2] who is the defendant (Rick). In the event of Jim’s intestacy, Rick would be the sole beneficiary of Jim’s estate.
[2]A pseudonym.

State Trustees was appointed administrator for Jim on 9 June 2006. This was reassessed by VCAT most recently on 14 June 2019, at which time VCAT confirmed that State Trustees should continue as administrator for Jim.

On 13 September 2021, Tim was appointed Jim’s guardian at a VCAT hearing, but Jim makes his own day-to-day decisions.

Jim is an Alpine Health Home Care Package Client, and Ms Annalee Gardam is his case manager. She has worked with him since April 2018. Jim is supported by a Level 2 Commonwealth Home Care package and is one of the most vulnerable people in her case load. Jim’s level of case management support has increased as his health has declined. Ms Gardam visits him weekly and attends all of his medical appointments. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State Trustees Limited v Cooper (a pseudonym)

Details

AGLC: State Trustees Limited v Cooper (a pseudonym) [2021] VSC 712
Case: [2021] VSC 712
Decision Date: 29 October 2021

CaseChat Overview and Summary

The case of State Trustees Limited v Cooper involved a dispute regarding the authorisation of a statutory will. The applicant, State Trustees Limited, sought authorisation to make a statutory will on behalf of the deceased, Cooper. Cooper had been appointed as the administrator of the estate but lacked the testamentary capacity to make a valid will. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the applicant, as the administrator of the estate, was entitled to seek authorisation for the making of a statutory will under section 21B of the Wills Act 1997.

The court had to consider whether the applicant, State Trustees Limited, had the necessary authority to apply for the making of a statutory will on behalf of the deceased, Cooper. This involved examining the circumstances in which a statutory will could be made and the criteria set out in section 21B of the Wills Act 1997. The court also considered the case of Re Gillam [2016] VSC 5, which provided guidance on the application of section 21B. Ultimately, the court needed to determine whether the applicant satisfied the requirements to seek authorisation for the making of a statutory will.

The court found that State Trustees Limited, as the administrator of the estate, had the necessary authority to apply for the making of a statutory will under section 21B of the Wills Act 1997. The court held that the applicant satisfied the requirements for seeking authorisation to make a statutory will because Cooper lacked testamentary capacity. The court noted that, in such circumstances, the applicant, as the administrator, had a duty to make arrangements for the deceased's estate. The court also considered the case of Re Gillam, which supported the view that an administrator could seek authorisation for a statutory will when the deceased lacked testamentary capacity.

The court authorised the making of a statutory will for Cooper's estate. The orders included granting the applicant, State Trustees Limited, the authority to make a statutory will on behalf of the deceased, Cooper. This decision ensures that the deceased's estate is managed and distributed according to legal requirements, even in the absence of a valid will.

Orders