State Trustees Limited v Cooper (a pseudonym)
[2021] VSC 712
•29 October 2021
| 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 does not reliably report his health issues and is not capable of cleaning his house or showering unassisted. Domestic assistance and personal carers are arranged through Alpine Health.
Dr Purtell states that Jim lacks competence to consent to kidney dialysis and does not understand what kidney disease is. He is poor cognitively. Dr Purtell has referred him to a geriatrician. Jim has limited insight into death and what happens after his dies. He told Dr Purtell that he has a nephew who he does not wish to pass anything to after he dies, and he became upset when talking about his nephew. Jim told Dr Purtell that he wishes for his estate to pass to ‘Tim Moore and Jenny Moore’, the siblings of his former partner. Jim did not initiate this conversation, but made those comments after it was initiated.
On 22 March 2021, Jim met with his solicitor, Rebecca Healy. The appointment was scheduled by Jim’s case manager, Ms Gardam. Ms Healy determined that Jim lacks testamentary capacity to make a will. He is unlikely to acquire or regain testamentary capacity. He has a disability and cannot make reasonable judgements about his estate. He has no previous wills.
At the appointment on 22 March 2021, Jim could not provide his full legal name, date of birth, address or details about his assets. He could instruct that he had ‘four or five moneys with the Commonwealth Bank’ and that he lives in Bright. Ms Gardam provided further details to Ms Healy. Ms Gardam referred to an outcome of a medical testamentary capacity assessment and confirmed that Jim did not have testamentary capacity. The nature of this assessment was unclear.
Ms Healy spoke to Jim about dying and what it means to leave a will. He understood the concept generally, but did not have a meaningful understanding of his assets. Ms Healy concluded that a will could not be drawn unless it was a court authorised will.
When Ms Healy explained to Jim that upon his intestacy, Rick will be the sole beneficiary of his estate, Jim become emotional. He did not want Rick to receive ‘his things’. Ms Gardam explained to Ms Healy that Jim and Rick do not have a close relationship. Jim said that he would like Tim and Jenny together to receive his things. Ms Healy stated that it appeared to her that Jim clearly did not wish for Rick to receive his estate.
Jim survives on the NDIS. He also has a total of $57,873.98 funds in court administered by the Supreme Court of Victoria[3] and the following assets:
[3]As at 16 September 2021, he has $30,778.55 in Common Fund No 2 and $27,095.43 in Common Fund No 3.
(a) CBA passbook savings account: $1,110.83;
(b) Entry contribution to Alpine Health paid by Funds In Court: $150,000;
(c) inveST Diversified Income Fund: $35,935.82; and
(d) Funds in trust: $20,185.27.
(e) A life interest in 3/236 Myrtle Street, Myrtleford.[4] He receives rental income from this life interest, and lives in separate accommodation.
In total, Jim has approximately $265,000 in assets.
[4]In 2010, Jim commenced proceedings seeking further provision from the estate of his uncle. Jim received a life interest in 3/236 Myrtle Street, Myrtleford in full and final settlement of his claim. Upon Jim’s death, the property shall pass to Rick.
Jim’s wishes
In early 2021, Ms Gardam worked with Jim’s general practitioner to revise Jim’s Statement of Wishes regarding medical treatment.
In late 2020 or early 2021, Ms Gardam asked Jim about Rick. Jim became agitated and said ‘he’s not my family’. He also became agitated when Ms Gardam mentioned Rick inheriting Jim’s belongings. When Ms Gardam asked him who he wanted his money and belongings to go to, Jim said ‘Tim and Jenny’. Ms Gardam understood this to be a reference to Tim Moore and Jennifer Pideski.
In March 2021, Ms Gardam enquired with Nevin Lenne & Gross, solicitors, to start the process of preparing a Statutory Will.
Mr Luke Wright is a VCAT Relationship Manager employed by State Trustees. Ms Gardam spoke to him about arranging a statutory will for Jim. On 10 September 2021, Mr Wright spoke to Jim. Jim told him he did not want Rick to get anything. On the file that State Trustees holds for Jim, there are written communications in August 2010 and September 2010 where Jim states that he does not like Rick and does not get along with him.
Procedural background
State Trustees filed an originating motion on 27 September 2021 seeking an order authorising a will to be made in the terms set out in Exhibit RH:5 of the affidavit of Rebecca Healy sworn on 29 September 2021.
The matter came before me for directions on 15 October 2021. Counsel for State Trustees informed the Court that Jim is in the end stages of kidney disease, with a life expectancy of 6-12 months. I discussed with Counsel the wording of the proposed will, and suggested a change to clause 5, to ensure that if either of Tim Moore or Jennifer Pideski predecease Jim, the whole of the estate would go to the surviving sibling, and would not result in a partial intestacy. Counsel agreed with this suggested change to the proposed will.
Subsequent to the hearing, the affidavit of Anna Grogan was filed on 15 October 2021, exhibiting an amended form of the will sought at exhibit AG:1. The draft will attached to Ms Healy’s affidavit is substantially the same as the one set out at Exhibit AG:1 of the affidavit of Anna Grogan sworn 15 October 2021, save for the amendment to clause 5.
State Trustees also filed an affidavit of Rick Cooper on 15 October 2021, in which he deposes that he does not intend to oppose the application for a will. Rick has read the draft will attached to Ms Healy’s affidavit, and understands that it contains Jim’s wishes, which he wants to be fulfilled.
On 19 October 2021, State Trustees’ solicitor emailed my Chambers to inform me that Jim’s health had deteriorated and his medical practitioners were now considering respite options.
On 19 October 2021, I made orders authorising the Will of Jim Holland in the form AG:1 to the affidavit of Anna Grogan sworn 15 October 2021. The will was signed by the Registrar of Probates and sealed with a seal of this Court (the Authorised Will).
The Authorised Will appoints State Trustees as executor of Jim’s Estate.
The Authorised Will leaves Jim’s estate equally between such of Tim and Jenny as survive him.
Should State Trustees’ application not have been granted, Jim’s estate would be administered in accordance with the intestacy provisions set out in Part IA, Division 6 of the Administration and Probate Act 1958, and pass entirely to his nephew, Rick.[5]
[5]Administration and Probate Act 1958 s 70ZI(3).
Statutory requirements for a statutory will – s 21B
Pursuant to s 21B of the Wills Act 1997 (the Act), the Court must be satisfied of the following three matters prior to making an order for a statutory will:
(a) that the person on whose behalf the will is to be made … does not have testamentary capacity; and
(b) that the proposed will … reflects what the intentions of the person would likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and
(c) that it is reasonable in the circumstances for the Court, by order, to authorise the making of the will for the person.[6]
[6]Wills Act 1997 s 21B.
Section 21B(a)
The established test for testamentary capacity requires the proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes and to be able to comprehend and appreciate the claims to which they ought to give effect.[7] In addressing these principles, State Trustees relied upon the affidavits of Ms Healy, a solicitor who has attempted to take instructions from Jim for a will, and Dr Rowan Purtell, a medical practitioner who had treated Jim for the past 12 months.
[7]Banks v Goodfellow (1870) LR 5QB 549 (‘Banks v Goodfellow’).
Relevantly, Ms Healy deposed that in her interview to take instructions for a will, Jim was aware of ‘four or five moneys with the Commonwealth Bank’, but that he could not instruct her as to any other assets. He was unable to tell her his address or date of birth. He expressed views about how he wanted his assets to pass upon his death, but did not appear to have a meaningful understanding of what it means to make a will. Ms Healy formed the opinion that he did not have testamentary capacity.
Dr Purtell deposed that:
[Jim] had limited insight to death generally and what will happen after he dies. He tells me that he has a nephew who he does not wish to pass anything to after he dies and he becomes upset when talking about his nephew. [Jim] has told me that he wishes his Estate should go to Tim Moore and Jenny Moore, the siblings of his former partner Lizzie.
Whilst a lack of decision making capacity pursuant to the Guardianship and Administration Act 1986[8] is not conclusive of a lack of testamentary capacity, I also note that Jim is under an administration order pursuant to that Act.
[8]Or the current incarnation of that act, the Guardianship and Administration Act 2019.
On the basis of the above evidence, I am satisfied that Jim does not have testamentary capacity.
Section 21B(b)
There are two limbs to the consideration of s 21B(b); first that the proposed will reflects what the intention of the person would be likely to be or, secondly, what the intentions of the person might reasonably be expected to be, if they had testamentary capacity.
There are two factors of particular relevance to my consideration of this issue. First, due to his childhood injury, it is possible that Jim has never had testamentary capacity. Unlike statutory will applications made on behalf of propositi who elected not to make a will prior to losing capacity, it is likely that Jim was never in the position to make a valid will. Consequently, the inference that might otherwise be available – that the lack of a prior will indicates Jim’s preference for the result of an intestacy – carries little weight.
Similarly, there is no available evidence from a time when Jim did have greater decision making capacity which might be relied upon as indicating his preferences about the disposition of his estate. In Re Ballan, McMillan J drew attention to the predicament that arises when a propositus has no prior will to that proposed in a statutory will application:
If the person has never made a will, there is no yardstick as to what his or her testamentary intentions were when he or she had capacity. Where there is a paucity of evidence, the Court cannot be satisfied of what the intentions of the person would be likely to be if he or she had testamentary capacity.[9]
[9]Re Ballan [2019] VSC 144, [22].
Whilst the evidence in this case cannot be described as a ‘paucity’, I am mindful that the best and only evidence of Jim’s preferences for the disposition of his estate are the views he expressed to his solicitor, service providers and physician, in a state of reduced decision making capacity.
Secondly, whilst not meeting the Banks v Goodfellow criteria for testamentary capacity, Jim has expressed consistent views about his testamentary wishes. The affidavits of Annalee Gardam, Luke Wright, Dr Rowan Purtell and Rebecca Healy depose that over the previous 12 months, Jim has repeatedly stated that he does not want Rick to inherit his belongings, and that he would like to leave his belongings to Tim and Jenny. This view was consistently reported by the different service providers who spoke to Jim regarding his estate planning.
There is no evidence before me that Jim’s views regarding his estate have changed suddenly, or that he has previously held a view which is inconsistent with the Authorised Will.
Notwithstanding my caution described in paragraph [35] above, I note that in Re Gillam, McMillan J confirmed that the second limb of the test under s 21B(b) will be met if the proposed will reflects what the propositus’:
… intentions would be likely to be, or what [their] intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what [their] intentions might be, or that some reasonable people think that it reflected what might be [their] intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be [their] intentions, if [they] had testamentary capacity.[10]
[10]Re Gillam [2016] VSC 5, [31].
Parallel to the views expressed by the propositus, I have considered the surrounding circumstances as they relate to the proposed will. According to the affidavit of Luke Wright, Jim has not had a close relationship with Rick since at least 2010, and they have been involved in litigation against one another in relation to the estate of Jim’s uncle.
In comparison, Jim has a good relationship with Tim and Jenny; Tim is his VCAT appointed guardian, and has assisted in Jim’s care. It is reasonable to expect that, if Jim had decision making capacity, he would be inclined to leave his estate to Tim and Jenny, or a combination thereof.
I am comfortable that given the consistency, repetition and clarity of the propositus’ views, the Authorised Will can be said to reflect what a reasonable person might think Jim’s intentions were and that the requirements of s 21B(b) are met.
Section 21B(c)
State Trustees submitted that it is reasonable for the Court to approve the Authorised Will in the circumstances. This is not a case in which the will somehow defeats a creditor or avoids a child’s divorce proceedings.
Neither the proposed beneficiaries of Jim’s will nor the beneficiary upon his intestacy would be eligible persons pursuant to Part IV of the Administration and Probate Act 1958. There are no ancillary purposes of this application, other than to fulfil the wishes of the propositus.
The lack of controversy in that regard is confirmed by the affidavit of the defendant, Rick Cooper, who consents to the application, and states that he desires for his uncle’s wishes to be fulfilled.
Accordingly, I find that the requirements of s 21B(c) are met.
Conclusion
In my view, the requirements of s 21B having been met, it is reasonable to make orders authorising a statutory will in the terms proposed by the plaintiff.
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