A Ltd v J

The present application

1. Turning then to the plaintiff's application, leave was sought by the plaintiff's amended summons for leave to apply for the making of a new statutory will as propounded in the draft will which is annexure "C" to the affidavit sworn 26 June 2017 by its solicitor, James John Buchanan. That draft will is broadly in the same terms as the statutory will dated 31 May 2017, but with a revised cl 2.3, conferring a power on the trustees under the will to adjust the proportions of the shares of residue in cl 2.2, to take account of superannuation, life insurance or death benefits that may be paid to any one or more of the Mother, E and F outside the estate.
2. The Mother propounded an alternative form of will (in the terms of a draft will annexed to the affidavit sworn 30 June 2017 of her solicitor, Roderick Cunich). I will indicate shortly the relevant differences between the two draft wills.
3. The Father, though initially filing written submissions opposing the grant of leave under s 19 of the Act and opposing, if leave be granted, the making of a further will for the Child, ultimately did not oppose either the grant of leave or the making of a new will but, instead, made submissions as to the content of the alternative proposed wills.
4. On the application, the plaintiff read three affidavits sworn by Mr Buchanan and one by Mr Geoffrey Worth, a Senior Relationship Manager of the plaintiff who is responsible for the management of the Child's estate. For the Mother, the affidavits that were read were affidavits sworn by her, affidavits sworn by each of the Child's siblings, by the Child's brother-in-law, by a registered nurse who is related as a half-brother to the Mother, and by the nurse who assists the Mother in the Child's care; and also the affidavit of her solicitor annexing the draft alternative will to which I have referred above. For the Father, three affidavits sworn by him were read. Various objections were taken by the Father to the other parties' affidavits at least insofar as they were read at the leave application stage. Following the making of rulings on those objections, the Mother and four of the siblings were cross-examined.
5. It is fair to say that there were significant factual disputes revealed by the affidavit evidence, largely as to the role the Father has played in the Child's life and that of his other children including as to: whether the Father had taken an interest in the Child's welfare; whether he was involved or the extent to which he was involved in caring for the Child during the Child's early years; whether he had provided emotional support for the Child; the extent to which he had seen the Child over the years; and whether he could be regarded as having abandoned the Child. The factual disputes as to the Father's relationship with the siblings included matters such as the extent to which he was involved in caring for them while the Mother was (as she was from time to time) spending time with the Child during periods of hospitalisation; and as to the interest/support shown by the Father in or for various of the siblings over the years.
6. The nub of the factual dispute in this regard is that the Father maintains that the Mother has understated his contribution to the Child's welfare over the years and, in essence, attributes blame for the lack of time spent by him with the Child at least in part to the Mother; the Mother, on the other hand, believes that her ex-husband effectively abandoned the Child and the family as a whole. There was certainly a degree of hurt and resentment exhibited by the Mother in the witness box towards her ex-husband. That said, I considered that those of the siblings who were cross-examined did not exhibit such resentment towards their father and their testimony was on the whole given in a matter of fact manner, with appropriate concessions as to the contribution that their father made towards them at an early stage of their lives and the continuation for at least a time after the separation of their parents of a relationship to some degree with their father (such as contact at Christmas or birthdays or, in one instance a visit to the paternal grandparents).
7. Nevertheless, what clearly emerged from the siblings' evidence was the lack of any close relationship for at least the last couple of years between the Father and any of the siblings, let alone with the Child. At most, on the siblings' evidence, the Father has had only sporadic contact with the Child in the last few years (and then, it would seem, usually at the instigation of or when arranged by one of the siblings).
8. Other than to make the observation I have made as to the effect of the siblings' evidence (which on the whole I accept), it is not necessary, nor is it appropriate, to make any finding as to where the truth lies in relation to why there was a break-down in the relationship between the Father and his children. Understandably, the perception of members of the family as to historical family events is likely to be coloured by their emotions. Counsel for the Father emphasised in this regard the siblings' support for their mother, which it was submitted meant that their evidence should be approached with care. Nevertheless, as I have indicated above, I considered the siblings' evidence on the whole to have been given in a balanced way. Similarly, although the Mother was clearly reluctant to make any concession that might shed a positive light on the Father's conduct over the years (such as her dismissal of his financial or other contribution to the family in the early years of the Child's life), and there may well have been an element of understatement in her account of the time the Father spent with the Child in the early years, her account of the significant amount that she had done for the Child over the years was compelling.
9. Pausing here I note that in Secretary Department of Family & Community Services v K [2014] NSWSC 1065, Lindsay J cautioned (at [81]-[82]) against the Court being overly judgmental about such matters: This case demonstrates a need for caution in the imputation of a testamentary intention in a "nil capacity" case. The Court must be careful not to be overly judgemental about personal faults within a family, and how such faults may impact on family relationships. It must also be careful to avoid imposition on a family of the moral imperatives of public administration, or on an appeal to "community standards" about deserving beneficiaries. As convenient as it may be to describe the necessary perspective of the Court as "objective" rather than "subjective", neither term is found in the text of the Succession Act, and neither may answer the needs of the particular case. In imputation of a testamentary intention to a child never possessed of testamentary capacity (Succession Act, s 22(b)), and upon consideration of whether it is "appropriate" for a statutory will to be made for such an incapacitated person (Succession Act, s 22(c)), the Court should refrain from embracing any form of presumption against a parent judged by regulatory authorities to be unworthy.
10. It is not disputed by the Father that the Mother has been the primary care-giver for the Child. The inescapable conclusion to be drawn from all of the evidence is that the Mother has, and has had, the most significant role in the Child's life and the closest and most significant relationship with the Child for the whole of the Child's life. Each of the siblings has given evidence, which I accept, of his or her relationship with the Child and of the assistance he or she has given, both to the Mother and to their sibling over the years, from which I am satisfied that each of the siblings has established a close relationship with the Child. In particular, the evidence of A, supported by her husband, that if anything were to happen prematurely to her mother then she would be prepared to look after the Child, is evidence that is testimony to her relationship with her brother and is evidence that I accept without hesitation. True it is, as B was ready to concede, that if circumstances changed in her own life (say, if she has her own children) then caring for the Child, with the disabilities the Child has, may be difficult. However, I accept that B is genuine in expressing her present intention in that regard.

Application for leave

1. I turn now to the statutory requirements in relation to an application for leave to bring an application for an order authorising the making of a statutory will.
2. Both in that regard and in relation to the task of the Court once leave to make such an application is granted, I have drawn considerable assistance on the analysis of the statutory scheme for the making of such will that is contained in authorities such as Re Fenwick; Application of JR Fenwick & Re Charles [2009] NSWSC 530 (Palmer J); AB v CB [2009] NSWSC 680 (Palmer J); Re Will of Jane [2011] NSWSC 624 (Hallen J); Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 (Lindsay J). In particular, I note that in Re Fenwick, Palmer J said (at [132]) that: The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Succession Act. 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.
3. First, it is necessary that the person applying for leave to make an application under s 18 provide to the Court the information set out in s 19 of the Act, which provides: 19 Information required in support of application for leave (1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18. (2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information: (a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (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, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval, (e) any evidence available to the applicant of the person's wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (g) any evidence available to the applicant of the terms of any will previously made by the person, (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, (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, (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, (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, (I) any other facts of which the applicant is aware that are relevant to the application.
4. This sub-section was described (in Re Fenwick at [123]) as providing a "check list" that was "neither exhaustive nor rigid" in outlining the information that the Court would normally require before granting leave (though Palmer J also noted that in "nil capacity" cases where the incapacitated person was still a minor there would probably be no information available under some of the paragraphs of the sub-section - (e), (g), (i) and (j)).
5. I am satisfied that the evidence filed by the plaintiff provided the information required to be given to the Court in compliance with s 19 of the Act. That information may be summarised as follows.
6. The general nature of the application, and the reasons for making it, were outlined in the affidavit of Mr Worth and in the submissions filed by the plaintiff. The plaintiff relied on Dr McDonald's report as evidence of the Child's lack of testamentary capacity (and pointed to the finding in that regard that was made by Robb J in May this year). Details of the Child's estate were provided by Mr Worth. A draft of the proposed will was annexed to Mr Buchanan's affidavit and the plaintiff indicated that it was prepared to act as executor and trustee of the proposed will.
7. As to the requirement for information as to any evidence of the Child's wishes (subs 19(2)(e)) the plaintiff noted that the Child's physical disabilities severely impacted his ability to communicate and on that basis took the position that the Child did not have the ability to express wishes regarding how he would want his estate to pass on his death.
8. As to s 19(2)(g), it was noted that the Child has a will, that being the statutory will made pursuant to the orders of Robb J on 31 May 2017. The plaintiff identified those persons who would be entitled to the Child's estate in the event that there were an intestacy as the Mother and Father in equal shares (see s 128(2) of the Act). As to the likelihood of an application being made under Ch 3 of the Act in respect of the property of the Child (s 19(2)(i)), the plaintiff's solicitor identified various persons who had been members of the Child's household and might potentially make an application under Ch 3 of the Act, if they could demonstrate that they have been at any particular time wholly or partially dependent upon the Child. Relevantly, they included the Mother, Father and six siblings.
9. As to s 19(2)(j), the plaintiff pointed to the circumstances of the various family members as deposed to in the affidavits sworn/affirmed by them. As to s 19(2)(k), again the plaintiff pointed to the Child's lack of capacity to express a wish of this kind but noted that the Child had previously received a standing frame from a named children's charity.
10. Finally, as to any other facts of which the plaintiff is aware that are relevant to the application (s 19(l)), reference was made to Dr McDonald's statement that it was difficult to give a life expectancy for the Child and that, although with luck the Child might have long term survival, the Child's "fragile condition means it is possible that sudden unexpected deterioration may occur".
11. It was also noted that the New South Wales Trustee and Guardian had been made aware of the application and had provided written confirmation that the plaintiff was authorised to make the application.
12. The requirements of s 19 having in my opinion been complied with, the next requirement for the grant of leave was that I be satisfied of the five matters specified in s 22 of the Act: 22 Court must be satisfied about certain matters The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied 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, and (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, and (c) it is or may be appropriate for the order to be made, and (d) the applicant for leave is an appropriate person to make the application, 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."
13. It is to be noted that the discretionary power to grant leave is separate from the discretionary power conferred under s 21 to authorise the making of a will (see GAU v GAV [2014] QCA 308) and that the role of the requirement for leave is not limited to screening out vexatious or unmeritorious claims (though as stated in Re Fenwick the Court will be concerned to ensure that an application for leave is not frivolous or vexatious - see [122]).
14. It is also to be noted that the requirement that the Court be satisfied of those matters is a significant constraint on the power to grant leave and the fact that the parties may be agreed as to some or all of them (such as here where ultimately there was no dispute between the parties as to the matters referred to in ss 22(a), (d) and (e)) does not obviate the need for the Court to be satisfied of those matters.
15. I was and am satisfied that there is reason to believe that the Child is, or is reasonably likely to be, incapable of making a will (s 22(a)). In that regard I note that Robb J has already made a finding of testamentary capacity in these proceedings and that this has not been challenged. Although the level of any intellectual or cognitive disability on the part of the Child has not been formally tested, there is clearly reason to believe that the Child is, or is reasonably likely, to be incapable of making a will. The Mother's evidence supports the conclusion that the Child has no understanding of the nature and extent of the assets comprising his estate, one of the requirements for testamentary capacity as set out in the test in Banks v Goodfellow (1870) LR 5 QB 549 and my observation of the Child, in the short video that I have watched, is that there would be likely to be considerable difficulty for the Child in expressing the Child's wishes as to the way in which claims on the Child's testamentary bounty should be dealt with (even assuming one could be satisfied that the Child understood information communicated to the Child as to those matters), particularly given the size of the estate and potential complexity (testamentary trusts or otherwise) of the way in which it should be distributed.
16. As to s 22(d), there is no doubt that the manager appointed to manage the Child's estate under the Protected Estates (Management) Act is the appropriate person to make the application.
17. As to s 22(e), I was and am 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.
18. Turning then to the requirements of ss 22(b) and (c), it was the submission of the plaintiff that those are interlinked. The reason that the plaintiff maintained that it was appropriate for an order for an application for a statutory will to be made (so soon after the previous will was made) was the perceived need to address what was regarded as a deficiency in cl 2.3 of the existing will, having regard to the identity of the beneficiaries who might presently be eligible for consideration in respect of the distribution of death benefits under the Child's superannuation policy.
19. As noted above, the existing will, which provides for an adjustment depending on the determination of the superannuation trustees as to the payment of death benefits, assumes that the "dependants", for the purposes of the superannuation trust deed and the Superannuation Industry (Supervision) Act, would be the Mother and Father. While, at the moment, the only persons likely to satisfy the definition of dependants would be the Mother and the Child's 16-year-old siblings, this may well change by the time of the Child's death. That was sufficient to satisfy me that it was or might be appropriate for a final order under s 18 to be made (see s 22(c)). As to whether the proposed will put forward by the plaintiff is, or is reasonably likely to be one that would have been made by the Child if the Child had testamentary capacity (s 22(b)), the significance of this is that the value of the residuary bequests will potentially turn on whether superannuation death benefits are paid to the legal personal representative of the Child or are paid, outside the estate, to one or more persons then satisfying the definition of "dependant". I was and am satisfied that a person in the position of the Child but having testamentary capacity would be reasonably likely to take into account advice received as to the possibility that a large part of his or her estate might be paid otherwise than as a testamentary disposition (i.e., "outside the estate") and to take that into account in determining what share of the residue of his or her estate should be given to a residuary beneficiary who might benefit from such a distribution. Accordingly, I was and am satisfied as to the requirement in s 22(b).
20. In those circumstances I considered that leave should be granted for the plaintiff to make an application for an order under s 18 of the Succession Act. Moreover, in light of the condition of the Child I was satisfied that this was a case in which I should proceed to determine the application for a final order as soon as leave was granted, on the basis that the circumstances revealed in the information provided to satisfy the requirements of s 19(2) and s 22 were sufficient to justify the making of a final order and were unlikely to change in the foreseeable future (see Re Fenwick at [120]).

Application under s 18

1. First, I note that, in relation to the hearing of the substantive application for an order under s 18, s 21 provides that: 21 Hearing an application for an order In considering an application for an order under section 18, the Court: (a) may have regard to any information given to the Court in support of the application under section 19; and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence.
2. That is of relevance when considering the affidavit relied upon by the Mother as the basis for the submission that the appropriate order for the making of a will should be one that included the disposition of the residuary estate on testamentary discretionary trusts (an affidavit to which objection was taken by the Father on the basis that it was not provided as expert evidence).
3. Section 18 provides as follows: 18 Court may authorise a will to be made, altered or revoked for person without testamentary capacity (1) The court may, on application by any person, make an order authorising: (a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or (b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity. Note: A person may only make an application for an order if the person has obtained the leave of the Court - see section 19. (2) An order under this section may authorise: (a) 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 (b) the alteration of part only of the will of the person. (3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity. (5) In making an order, the Court may give any necessary related orders or directions. Note: The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit - see section 86 of the Civil Procedure Act 2005. The Court also has extensive powers to make directions under sections 61 and 62 of that Act. (6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will.
4. The first point to note is, as was made clear in Re Fenwick, at this stage of the application the Court must be satisfied that there is an actual lack of testamentary capacity (it is not sufficient, as it is at the leave stage, merely to demonstrate that there is reason to believe that the subject person is reasonably likely to lack testamentary capacity).
5. I accept, as was emphasised in the Father's initial written submissions, that the best evidence as to testamentary capacity will be that of a specialist professional and the least satisfactory that of lay persons who would benefit under the proposed statutory will (see Re Fenwick at [127]-[129]). In the present case, the assessment of Dr McDonald that the Child's cognitive ability is no greater than that of an ordinary 13 year old is, I accept, of relatively little assistance since the question is whether such cognitive ability as the Child has would satisfy the Banks v Goodfellow test. I also accept that "[t]he level of satisfaction that a Court must feel as to the essential requirement of permanent testamentary incapacity must have regard to the gravity of the power being exercised and to its consequences" (see Re Fenwick at [130]). Having regard to the matters referred to at [43] above, I was and am satisfied to that level of satisfaction that the Child does lack testamentary capacity. If I were to have had any doubt as to this I would have required further medical evidence as to the Child's cognitive abilities but as it was I did not consider this necessary. I was and am satisfied that the Child is now and will continue to be incapable of making a will.
6. The questions then are as to whether a (new) will should be made for the Child and what is the appropriate will to be made. Accepting the caution expressed by Lindsay J as to the use of the characterisation of such cases as "nil capacity" cases (K at [80]), this is nevertheless the kind of case considered by Palmer J in Re Fenwick to be a "nil capacity" (rather than a lost capacity or pre-empted capacity case). The Child's estate is substantial. I was and am satisfied that it was reasonably likely, in the sense that there was a fairly good chance, that - just as Robb J was satisfied that the Child would have preferred to leave the estate to selected beneficiaries rather than to have the estate distributed on an intestacy - had the Child had testamentary capacity the Child would have taken into account advice given as to the nature of the estate including the possibility that one or more residuary beneficiaries would receive a distribution out of the superannuation fund and hence that this should be taken into account in determining how to meet the competing claims on the Child's testamentary bounty. For that reason I was and am satisfied that it was reasonably likely that the Child would have made a new will had the Child had testamentary capacity.
7. As to what is the appropriate will in these circumstances, I note that there are three main differences as between the wills propounded by each of the plaintiff and the Mother, respectively.
8. The first is as to the share of residue to be left to the Father. The will authorised by Robb J provided for the Father to receive a 15% share of the residue. Assuming that no death benefits were paid to the estate, then on the present valuation of the Child's estate the residue (after taking into account the specific bequest to the Mother of the house and other personal assets) would be in the order of some $1.75 million. A 15% share of the residue would therefore be in the order of $260,000 on my rough calculations. On the Father's calculations, using a slightly lower value of the overall portfolio but a higher value for the family home, his share would equate to around $255,000 and it was submitted that this equates in round terms to a mere 3% of the overall estate and is grossly inadequate and manifestly unreasonable.
9. The Mother proposes a different testamentary regime, namely that (after her 42.5% share of the residue) the Father and the siblings should each have an equal share of the balance (i.e., the Father would receive approximately an 8.21% share of the residue).
10. The Father emphasised that the laws of intestacy already provide for what is to happen in the absence of a will. It was submitted that a question arises in applications to authorise statutory wills as to why the law should apply differently to a person without testamentary capacity than to someone with testamentary capacity. The Father noted that if the Child were to die without a will, then he and the Mother would take in equal shares on intestacy and that if the Child's parents were to predecease him, the Child's siblings would take in equal shares. The Father also emphasised that the majority of assets in which the Child has a beneficial interest have been invested in a superannuation fund and would not pass to the Father on the Child's death.
11. After careful consideration, I was (and remain) of the opinion that the proposed apportionment of the shares of residue by the Mother is the one that should be adopted. This is not by reason of any attribution of blame for the break-up of the marriage or the conduct of the Father or Mother thereafter. I accept what was said in K by Lindsay J in this regard. This is not, unlike a claim for family provision, a jurisdiction in which the concept of disentitling conduct is helpful or appropriate. Nor is this the kind of case, as was considered in Re Charles, (where the suspicion that the parents had been the cause of the child's incapacity was a matter taken into consideration).
12. Nevertheless, I consider that such an apportionment reflects the reality of the situation that, leaving aside who was to blame for it, the Mother has and has had a more established and closer relationship with the Child than any other family member and that the established relationship between the Child and the siblings (and the circumstances in which they have and will, it may be taken, continue to provide significant assistance to the Child) must be contrasted against the lesser relationship that exists between the Child and the Father.
13. While I do not accept the proposition that the Father's relationship with his other children necessarily informs an assessment of his relationship with the Child, as was put in the course of submissions for the Mother; I do accept that if there is no or only a limited relationship between the Father and his other children, then it seems highly unlikely, from a practical point of view, that the Father will be able to establish, in the future, a close relationship with the Child. I therefore accept, in the words of Palmer J in AC v CB (at [42]), that "for whatever reason" the Father does not now have day-to-day involvement in the Child's care or emotional wellbeing (and has not had for a considerable time since the separation much involvement in that care or emotional well-being).
14. Those are the circumstances in which I considered that there was a fairly good chance that the proposed apportionment of residue put forward by the Mother's proposed will reflects what a reasonable person, in the position of the Child, would do to recognise the respective claims on the Child's testamentary bounty of the Father on the one hand and the siblings on the other. In other words, I was of the view that a reasonable person would not attach a greater significance to the Father's claim for a share of the Child's testamentary bounty (by reference to his contribution to the Child's welfare in the early years of the Child's life) than that of the respective siblings (by reference to their on-going emotional support for the Child and the physical care and assistance they have rendered during the Child's life). Indeed, as I expressed in the course of the hearing, a reasonable person in the position of the Child but having testamentary capacity might well have formed the view that the whole of the estate should be left to the Mother, who has provided such all-encompassing care and support for the Child in circumstances which have no doubt involved an enormous emotional and physical toll on her own well-being.
15. For completeness, I note, insofar as the Father placed emphasis on the regime that would be applicable on an intestacy, that s 128 of the Succession Act (which makes provision for the parents of an intestate to take the whole of the intestate estate if the intestate leaves no spouse and no issue and, if both parents survive, the entitlement vests in equal shares) is part of a legislative regime operative upon intestacy. The object of that regime has been described (at 8) in the following terms by the NSW Law Reform Commission (see NSW Law Reform Commission, Uniform Succession Laws: Intestacy, Report No 116 (2007)): 1.23 The rules of distribution on intestacy are, at the most general level, the community's view of what should be done with the estate of a person who has died intestate. … [My emphasis.] … 1.25 One of the more widely acknowledged aims of intestacy rules is to produce the same result as would have been achieved had the intestate had the foresight, the opportunity, the inclination or the ability to produce a will. [Citing Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 163; Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 2, 7; Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 59; Tasmania, Office of the Public Trustee, Consultation; A Dunham, "The Method, Process and Frequency of Wealth Transmission at Death" (1962) 30 University of Chicago Law Review 241 at 241.]
16. The Commission said (at 156) the following about the general order of provision (namely, children and their descendants; parents; brothers and sisters; grandparents; and then aunts and uncles): 9.3 This order is broadly reflective of all schemes that have departed from the system of inheritance by degrees of relationship established by the old Statute of Distributions. The Statute of Distributions established an order whereby those next of kin in closest relationship to the intestate were entitled to take in preference to relatives of remoter degree. So, for example, parents were entitled as relatives of the first degree, brothers and sisters were entitled together with grandparents as relatives of the second degree and nephews and nieces, aunts and uncles and great grandparents were entitled as relatives of the third degree and so on. It is generally felt that the modern provisions, which give prominence to those who are "closer" in relationship to the intestate, would accord more with the presumed intentions of those who die intestate. [Footnotes omitted.] [My emphasis.]
17. Dal Pont and Mackie (see GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, 3rd ed, 2013)) say the following (at [6.17]): The statutory orders target familial relationships, scaled from those arguably closest to the intestate to those with a connection gradually more removed, and in so doing aim to accord with the presumed intentions of the deceased. The focus on familial, and usually blood, relationships dictates that the intestacy rules are not designed to reflect relative merit or desert so far as inheritance is concerned. It is assumed that questions of merit or desert are within the province of the deceased to implement by way of a testamentary document rather than by a statutorily declared order of inheritance. Moreover, although the law on family provision is not primarily designed to reflect an applicant's merit - vis-à-vis the deceased or other claimants on the deceased's estate - to the extent that it takes into account an applicant's conduct vis-à-vis the deceased, it de facto targets aspects of merit or dessert. [My emphasis.]
18. In the present case, however, the rationale underlying what would have been the entitlements of the parents on the intestacy of the Child was of little assistance. Apart from the fact that the task with which the Court is here dealing was what would be an appropriate exercise of the testamentary bounty of someone in the position of the Child but having testamentary capacity, there is reason (not by way of apportionment of blame but by way of reflecting the strength of the competing claims of the siblings) to conclude that the relationship between the siblings and the Child should be given at least equal weight to that which formerly existed between the Child and the Father (and does not now, for whatever reason, subsist in any meaningful way).
19. As to the second difference, the plaintiff proposed clauses dealing with the set-off of the superannuation proceeds, in the event that that is paid outside the estate. It was accepted that the superannuation proceeds might be paid in that fashion. The plaintiff is concerned that the present management scheme, apart from the fact that it incorrectly assumes that the Father would satisfy the definition of a "dependant" at present, is that this may require the trustees to effect an adjustment that is not arithmetically possible and, for that reason, the plaintiff proposed that there be a discretion reposed in the trustees under the will in relation to any such adjustment.
20. The Mother submitted that it was not appropriate for there to be an adjustment, as this would operate to impose a fetter on the superannuation trustees' discretion as to the manner in which death benefits are to be payable out of the proceeds of the superannuation investment. I did not accept that submission. I did not consider that this would impose a fetter on the superannuation trustees' discretion; rather, I considered that a reasonable person, considering the exercise of his or her testamentary bounty in the Child's circumstances, would have regard to the possibility that a large portion of his or her estate might be paid otherwise than under the terms of his or her will and would adjust the testamentary provisions to take that possibility into account.
21. The options put to me in oral submissions (if I were minded to make provision for such an adjustment) were to include a discretion, for the trustee under the will, to make adjustment to reflect the payment of death benefits, which was the version put forward by the draft will propounded by the plaintiff or, as submitted by the Father, that there be a duty to adjust the share of residue for the residuary beneficiaries in the event that the proceeds were paid to one or more of the residuary beneficiaries outside the terms of the will.
22. In the circumstances, my view was that there should be an adjustment so that, as nearly as possible, having taken into account whatever the determination of the superannuation payout should be, the respective residuary beneficiaries will maintain, to the extent possible, that proportion of the estate, notionally including the superannuation payments as set out in the residuary provisions of the will.
23. In those circumstances, it was my view that the will propounded by the plaintiff should be amended in order to require the trustees of the will to make such an adjustment, but to make it clear that it is only to the extent that that is arithmetically possible, having regard to whatever the determination of the superannuation trustee may ultimately be.
24. The third issue where there was debate was as to whether there should be a scheme under the will establishing testamentary discretionary trusts. As already noted, the will authorised by Robb J did not do so, for the reasons his Honour explained at [29] of his reasons.
25. Since then, the Mother's solicitor has sworn an affidavit deposing to the circumstances in which testamentary trusts may commonly be employed. Although not provided as expert evidence in accordance with the rules, Mr Cunich has deposed to his considerable experience in this area of the law and that at this second stage of the process, in determining what will should be authorised, if any, under s 18 of the Succession Act, the Court may inform itself as it sees fit (see Succession Act, s 21).
26. Mr Cunich explained in his affidavit that there are advantages, in terms of asset protection and taxation benefits, by the use of the testamentary trust mechanism, although he did not identify those in detail. Relevantly, however, Mr Cunich indicated that a testamentary trust may be appropriate: where the estate is comprised of significant assets; where there are beneficiaries who are vulnerable for any reason and there is a risk that they will not be able to manage their inheritance, whether short-term or long-term; and where a beneficiary is young and may have, in the future, domestic relationships or a marriage which may or may not be long-lasting.
27. I have read [16] of Mr Cunich's affidavit (in which he deposed to his opinion as to what someone, in the position of the Child, having capacity and being informed of the benefits of a testamentary trust, would elect to do) as no more than a submission as to the circumstances in which commonly a testamentary trust might be imposed. Those reasons include: the significant sum of money that each of the siblings and the Mother may potentially inherit; the relatively young age of the siblings (two of whom are minors); and concerns associated with two others of the siblings as to whether or not they would have the necessary skill to manage money, currently or in the future.
28. I accepted that there was some evidence of the vulnerability of two of the siblings in that regard (A and D) and, as noted, two of the siblings are still minors. I considered that the testamentary trust structure proposed by the Mother was appropriate. (I note that, in the course of oral submissions, the Father did not suggest otherwise.) In those circumstances I considered it appropriate to include in the will provision for the establishment of testamentary trusts.

Conclusions

1. This case falls within the category of case that was described by Palmer J in Re Fenwick as a "nil capacity" case. I had in mind that this is a protective jurisdiction and is not governed by rules of adversarial litigation. I also had in mind that it is a serious matter for the Court to appropriate to itself the will-making power of citizens and that the best interests of an incapacitated person and those having proper claims on his or her trust bounty are the objects of the jurisdiction here being exercised (see Palmer J in Re Fenwick at [130]-[132] and also at [171]-[172]).
2. I was and am satisfied that the Child lacks testamentary capacity.
3. I was and am satisfied that it is reasonably likely that the Child, had the Child had testamentary capacity and been properly advised, would have chosen to make a new will to deal with the fact that (through no fault of his Honour) the existing wording of cl 2.3 in the will authorised by Robb J will not necessarily achieve its intended purpose.
4. I was and am satisfied that it is reasonably likely, in the circumstances, in the sense that there is a "fairly good chance", that a reasonable person, faced with the circumstances of the Child, would make testamentary provision for the distribution of his or her estate in the proportions propounded by the Mother and I was and am satisfied that a final order, to the effect sought in relation to the making of a new will (with the above revisions) is appropriate.
5. In particular, I was and am satisfied of there being a fairly good chance that the Child would have chosen the Mother as the primary beneficiary, but would also have wished to make provision for each of the siblings, with whom the Child has had a significant relationship and from whom the Child has received significant assistance, as well as (in an equal share as that given to each of the siblings) for the Father.
6. As noted earlier, this is not a jurisdiction where disentitling conduct necessarily plays a role; nor is it a case of the kind that was considered by Palmer J in Re Charles. There is no need, nor is it appropriate, for me to attempt to apportion blame for the present family circumstances. I was and am satisfied that there is a fairly good chance that a person, in the Child's circumstances, would have recognised the Father's claim on the Child's testamentary bounty, by reference to the Father's contribution to the Child's welfare in the early part of the Child's life, but I was and am not satisfied that someone in the Child's position would have elevated the Father's claim on the Child's testamentary bounty, above that of the Child's siblings. It was for those reasons that I accepted the submission made on behalf of the Mother that the share of the residue estate that the Father should receive under the will should be equal to that of each of the siblings.

Costs

1. Section 18(5) of the Succession Act confers a discretion on the Court, in making an order, to give any necessary related orders or directions. This discretion extends to making an order that the costs of a statutory will application be paid out of the person's assets.
2. Amongst the matters that the Court should take into account, in determining the appropriate exercise of the discretion, are whether the application is properly brought; and whether an order that costs be paid from the proposed testator's assets would have any detrimental impact on the proposed testator's wellbeing.
3. It is clear that the application was properly brought and that an order that the costs of the plaintiff be paid out of the Child's estate will not impact detrimentally on the estate. Mr Worth has deposed that: As Relationship Manager of [the Child]'s portfolio, I can confirm that if an order is made by the court that the costs of the Court-authorised Will application are to be paid out of [the Child]'s estate, those costs and disbursements will not have any adverse impact on [the Child]'s financial position or [the Child']s car and wellbeing, given the size of [the Child']s portfolio.
4. I accepted that it was appropriate in this case that the plaintiff's costs be paid out of the Child's assets, on the indemnity basis. When giving my oral reasons, the Mother sought that the question of how the costs of the Mother and the Father should be borne should be reserved and I made directions for short submissions on that issue.

Orders

1. Accordingly, I made the following orders (slightly revised in the course of the day from those indicated orally - the changes being only to remove room for misunderstanding as to what I was proposing in terms of the revised will): 1. Grant leave to the plaintiff to make an application on behalf of the Child for an order authorising a will to be made for the Child in terms set out in the annexure to Mr Buchanan's affidavit sworn 26 June 2017. 2. Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act 2006 (NSW). 3. Direct the plaintiff to liaise with the first defendant's solicitors to prepare a revised will in the form of the will annexed to Mr Buchanan's affidavit but with the following amendments: 1. after the 42.5% share of residue to be left to the Mother, the remainder of the residue be divided in equal shares between the Father and the six siblings; 2. to amend cl 2.3 of the existing will in order to make provision for the trustees of the will, to the extent possible, to adjust the share of revenue to be received by the residuary beneficiaries after having regard to any distributions made by the trustees of the superannuation fund of death benefits to any one or more of the residuary beneficiaries, with the intent that as nearly as possible each of the residuary beneficiaries receives the stipulated share of the total value of the superannuation benefits and the residuary estate; and 3. make provision for the respective residuary bequests such that the shares in the residue of the estate be held on testamentary trusts in accordance with the terms proposed in the draft will of the first defendant, being an annexure to the affidavit of the first defendant's solicitor, Mr Cunich. 1. Note that on the filing of a revised will in accordance with these reasons and the orders I have made, I will make an order in chambers authorising the registrar pursuant to s 21 of the Succession Act 2006 (NSW) to sign and seal with the seal of the Court the said will. 2. Order that the plaintiff's costs of these proceedings be paid out of the estate of the Child on an indemnity basis. 3. Reserve the question of costs in respect of the first and second defendants and direct each to file short written submissions in relation to costs by close of business on Friday, 7 July 2017, with a view to determining that issue on the papers. 4. Order that the names of the Child and the family members be anonymised when the orders are entered on JusticeLink and on the transcript.
2. By way of postscript, I note that late in the afternoon of 3 July 2017, in my presence, the revised will as prepared by liaison between the plaintiff's solicitor and the Mother's solicitor (and copied to the Father's solicitor) was signed and sealed under the Court Seal by the Registrar. The original will has been deposited with the Registrar and will there be retained in accordance with the Act (see s 18(6) and s 24 and the explanation of the procedure in this regard in Re Will of Jane at [60] (Hallen J)).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2017