AB v CB & Ors

Supreme Court of NSW|2009-07-20|Before: Palmer J

CITATION : AB v CB & Ors [2009] NSWSC 680

DECISION : Leave granted and will approved.

CATCHWORDS : SUCCESSION - STATUTORY WILL - REPRESENTATION ORDER - PROCEDURE - whether uncontested application may be heard in absence of public and orders made without publishing reasons - whether separate representation order should be made - whether leave to make application should be granted and final orders made at same time. - APPROVAL - PRE-EMPTED CAPACITY CASE - whether will excluding father reasonably likely in circumstances of case.

Civil Procedure Act 2005 (NSW) - s 71 - Guardianship Act 1987 (NSW) LEGISLATION CITED : - NSW Trustee and Guardian Act 2009 - s 41 - Protected Estates Act 1983 (NSW) - s 13 - Succession Act 2006 (NSW) - Chapter 2, Pt 2.2 Div 2, s 18, s 19, s 23, s 25

C (a minor) (Wardship: Medical Treatment) (No 2), Re [1990] Fam 39 - Cattanach v Melchior (2003) 199 ALR 131 CASES CITED : - Fenwick, Re [2009] NSWSC 530 - Finlay v Finlay 148 NE 624 (NY, 1925) - Scott v Scott [1913] AC 417

AB - Plaintiff PARTIES : CB - First Defendant SB - Second Defendant FB - Third Defendant

COUNSEL : J.A.D. Needham SC (Plaintiff) J.N. Glass (Sol) (Trust Company Limited, Tutor for First Defendant)

Somerville & Co (Plaintiff) SOLICITORS : - De Groots Wills & Estate Lawyers (Tutor for First Defendant) - Submitting appearance (Second Defendant)

1 This is an application for a statutory will under s 18 of the Succession Act 2006 (NSW). It has come before me in open Court, although no one is present except the Plaintiff, her legal representatives and Mr Glass, solicitor, who appears for a trustee company seeking a representation order under s 25 Succession Act. Ms Needham SC, who appears for the Plaintiff, has asked that the reasons for judgment, when published on the Court's internet site, not identify the parties by name or otherwise disclose particulars by which they may be identified. I have said that I would accede to that request. These are my reasons for doing do. 2 The application is brought by the mother of a severely incapacitated girl, who is the First Defendant. The other members of the immediate family, namely the girl's brother and her father, are the Second and Third Defendants respectively. None of the Defendants has taken an active part in the case. For reasons which will later appear, I have not considered it necessary or appropriate that an order should be made under s 25 of the Act appointing someone to represent the First Defendant's interests. Everyone who may have had an interest in contesting this application has been served or has been given proper notice of it, and no one wishes to appear and oppose. The application is, therefore, non-contentious. 3 Section 71 Civil Procedure Act 2005 (NSW) ("CPA") provides that the business of the Court may be conducted in the absence of the public in a number of circumstances, the most relevant of which are: "(d) if the proceedings are not before a jury and are formal or non-contentious,

(e) if the business does not involve the appearance before the court of any person,

(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit …" 4 This application is not to be heard before jury and it is not contentious, so that the proceedings fall within s 71(d). Although a number of affidavits have been filed, no one has been required to give evidence orally. Ms Needham's very helpful submissions have been in writing. The proceedings could, therefore, quite properly fall within s 71(e). 5 The statutory will making jurisdiction conferred on the Court by Chapter 2, Pt 2.2, Div 2 of the Succession Act 2006 (NSW) is very much of the same character as the protective, or paternal, jurisdiction which the Courts of Chancery and the Equity Division of this Court have always administered in relation to those in need of special protection, such as children not within the jurisdiction of the Family Court and persons who are mentally infirm or incapacitated: see the history of the statutory will making provisions referred to in Re Fenwick [2009] NSWSC 530. In business arising in the protective, or paternal, jurisdiction of the Equity Division, non-contentious applications are uniformly dealt with by the Judge in Chambers: for example, unopposed applications for adoption and unopposed applications for the appointment of a financial manager for a person incapable of managing his or her affairs under s 13 of the Protected Estates Act 1983 (NSW) (now s 41 of the NSW Trustee and Guardian Act 2009). Uncontested applications of this character provide some of the few exceptions to the strict rule that justice is administered in open Court. This is because the Judge who is administering the protective, or paternal, jurisdiction is not deciding a contested question in adversarial litigation. The Judge's position is as administrator: the Court's decision is not as to which of two contestants is to win the day but, rather, what is in the best interests of the person whose affairs are in the charge of the Court, either because he or she is a minor or because he or she is incapacitated and needs the Court's protection. Of cases in this category, Lord Shaw of Dunfermline said in Scott v Scott [1913] AC 417, at 483: "The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."

See also Re C (a minor) (Wardship: Medical Treatment) (No 2) [1990] Fam 39, at 46; Scott v Scott (supra) at 437 per Viscount Haldane LC; Finlay v Finlay 148 NE 624 (NY, 1925) at 626 per Cardozo J and the review of the authorities by Heydon J in Cattanach v Melchior (2003) 199 ALR 131, at [336]. 6 This case is a classic instance of an application to the Court, in its protective jurisdiction, to adjust rights within a family, in the best interests of an incapacitated person, without having to decide any contest. It falls squarely within the category of cases which do not require to be adjudicated in open court and do not require the publication of reasons for judgment. Had it been necessary to do so at the time the matter was called on for hearing, I would have ordered that the proceedings be conducted in the absence of the public pursuant to s 71(f) CPA. 7 Because the procedural aspects of this application are of some significance to the legal profession, these reasons for judgment will be published by the Court but pseudonyms will be used to protect the privacy of the parties. Accordingly, I will refer to the Plaintiff as "AB", to her daughter, the First Defendant, as "CB", to her son, the Second Defendant, as "SB", and to the Third Defendant, the father of CB, as "FB". 8 In the future, where uncontested applications of this type are dealt with in private chambers, reasons for the orders made will not usually be published unless some point of law or procedure of general application arises. Whether representation order appropriate

9 As this is the first case coming before the Court of what I have called in Re Fenwick (supra) a "pre-empted capacity case" - that is, a case where someone has lost the capacity to make a will not long before attaining the age of eighteen years - I thought it appropriate to consider the question whether a separate representative ought to be appointed for CB pursuant to s 25 Succession Act. 10 Mr Glass, who appears for the Trust Company Limited, being the company which is administering the financial affairs of CB pursuant to an order of the Guardianship Tribunal, urges that the Trust Company Limited be appointed as separate representative of CB for the purposes of these proceedings. The circumstances may now briefly be recounted. 11 CB suffered very severe brain injury in a motor vehicle accident at the age of sixteen. The expert medical evidence clearly demonstrates that she has extremely limited residual intellectual capacity and is virtually unable to communicate. She is now twenty-one years of age and is totally dependent upon others for her everyday care and maintenance. 12 When an application under the Guardianship Act 1987 (NSW) was made for guardianship and financial management orders, the Guardianship Tribunal was satisfied that CB was completely unable to express a view to the Tribunal in relation to that application. 13 The Act, in s 25, enables the Court to order separate representation for an incapacitated person if it appears to the Court that such person should be separately represented. There is no guideline expressly given in the section or otherwise in the Act as to what circumstances should impel the Court to order separate representation, but clearly enough one of those circumstances would be where it appears to the Court 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. 14 The circumstances in which such a conflict of interest may arise vary infinitely. For example, the circumstances may suggest that the proposed will may not be in terms which the incapacitated person would himself or herself have made. There may be a suggestion that that the incapacitated person is more capable of expressing a testamentary intention than the applicant asserts, so that more investigation of the person's residual capacity is justified. These are but some examples. 15 In this case, the evidence shows that there are very few people who might have a claim on the testamentary bounty of CB. The first and most significant is AB, who is entirely responsible for her day-to-day care and support, and who has devoted her time wholly in that regard. The second is her brother, SB, who is younger and, so far as the evidence shows, able-bodied and in employment. The third is CB's father, FB, who has been divorced from AB for some years and has for some considerably longer time been estranged from the family. 16 If no statutory will were to be made for CB, AB and FB would take upon an intestacy if she predeceased them. The purpose of this application to the Court is self-evident - to provide for a will which will leave the benefit of CB's estate to AB but, if she predeceases, then to SB, to the exclusion entirely of FB. 17 The evidence shows that because CB was incapacitated at the age of sixteen and has been cared for by AB since then, there is no other person who can possibly fall into the category of an 'eligible person' for the purposes of an application under the family provision legislation. 18 FB has been served with notice of this application. FB's mother has also been served with notice of this application. 19 The evidence suggests that FB himself is suffering from illness or infirmity -perhaps drug-related issues - and he may not be able to respond to this application appropriately for himself. However, neither FB nor his mother has appeared so far, and FB's mother has expressly declined to participate in the proceedings. Therefore it appears that if the matter does proceed to an application for a final order there will be no representation on behalf of FB. 20 In these circumstances, one must ask then is what purpose will be served by the appointment of a separate representative for CB? Is there any evidence to suggest that CB would not wish to leave her estate to her mother, who is her primary carer, with a gift over to SB if AB predeceases her, and a further gift over to specified charities if the gift to her brother fails? Is there any evidence to suggest that the wishes of CB, so far as they are known, concerning her testamentary intentions and the state of her relationship between her and her parents are not as represented in the affidavit evidence so far adduced? 21 Mr Glass very properly concedes that he cannot say at this stage whether any facts have been misrepresented or whether there is any other evidence which may be adduced which may cast a different light on the case. Mr Glass says that his client should have the opportunity, in CB's interests, of investigating the allegations put forward by AB to test their veracity and to see whether there is anything further that can be placed before the Court to elucidate the presumed testamentary intentions of CB. Mr Glass suggests that it may be possible for his client to gain some information by interviewing CB. 22 In view of the medical evidence which has been adduced and in view of the conclusion in that regard to which the Guardianship Tribunal came, it is highly improbable that any attempt to interview CB would produce any useful information. It seems quite clear that she is, unfortunately, incapable of forming or expressing any rational view about any aspect of the administration or management of her affairs. Further, I accept that an attempt to interview her may well cause her distress, to no purpose. 23 In short, those who would have a legitimate expectation of benefit from CB's estate are actually aware of this application and none wish to contest it. There is no eligible person who might make an application in due course under the family provision legislation. CB herself is incapable of forming any testamentary wish. In those circumstances, it seems to me that nothing is to be gained from appointing the Trust Company merely for the purposes of seeing whether or not something may be turned up which may cast a different light on the evidence so far adduced. 24 The estate of CB is large, because it represents damages awarded for the purposes of her care and maintenance for the rest of her life. Her needs are very high indeed and I would be extremely reluctant to have that estate diminished by legal costs which serve no practical purpose. 25 For these reasons, although it was proper in the circumstances of this case for the question to be raised as to whether a separate representative ought to be appointed pursuant to s 25, I do not think that it is appropriate that such an order be made. 26 Accordingly, I will not make the orders sought by Mr Glass and I will proceed to hear the application in the absence of any separate representation on behalf CB. 27 I order that the costs of Mr Glass appearing on this occasion and on the last occasion and incidentally thereto be paid out of CB's estate. Leave and final orders

28 AB by this application seeks both that leave be granted to her pursuant to s 19 of the Succession Act to make an application for a statutory will on behalf of CB pursuant to s 18 of the Act, and also a final order under s 18 authorising such a will in the form which has been provided to the Court. As I have noted, this is a case of pre-empted testamentary capacity, to adopt the shorthand reference which I used in Re Fenwick: in other words, CB suffered an incapacitating injury while still a minor and, therefore, legally incapable legally of making a will. However, she was sixteen at the time of the accident and she obviously had formed relationships, both familial and extra-familial. She would have been able to express views about how she would wish to make testamentary disposition if it had been necessary for her to make such a decision prior to her injuries. 29 The medical evidence makes it abundantly clear that CB has suffered severe and traumatic brain injury so that she is incapable of expressing herself even in the most rudimentary way. She is incapable of understanding anything to do with her affairs. She is incapable, in short, of looking after herself even to the most basic requirements. It is abundantly clear that she will never regain testamentary capacity. 30 As a result of proceedings brought by a tutor, CB has received an award of damages which is very substantial. It is substantial because her life expectancy, despite her brain injury, is long. She has extremely high needs and it will be very expensive to care for her suitably. It is possible that her estate, carefully managed, will be sufficient to provide adequately for CB's needs during her lifetime and that there will still be a substantial sum left when she dies. It is for this reason that a statutory will is sought to be made for her. 31 CB's family consists of her mother, her father and her younger brother. The parents were divorced some years ago. The father ceased living with the family from the time that CB was nine years of age. CB lived with her mother thereafter and, of course, continues to live with her mother. Her brother is now some nineteen years of age and does not reside with the family, although it appears from the evidence that he is still close to the family. 32 FB has had very little to do with the family since CB was nine years of age. The evidence suggests that he has had severe drug and alcohol abuse problems. Some time ago he left Australia and is now resident in the United Kingdom. He had very little contact with CB before her accident. He appeared at the Guardianship Tribunal hearing which appointed AB as guardian and financial manager of CB and FB supported that application. Thereafter he has had little, if any, contact with CB and AB. 33 As I have noted, FB has been served with these proceedings as has FB's mother. There has been no appearance for FB, and his mother has expressly declined to be involved in the proceedings in any way, whether on her own behalf or to advance the interests of her son. SB does not oppose the application. 34 CB, as I have mentioned, is completely incapable of looking after herself, even to the extent of her most basic daily needs. AB has been looking after her full-time since CB returned from hospital after the accident. It goes without saying that AB will continue to look after CB for the rest of her life, to the extent that she is able to do so. 35 I will first consider the requirements for the granting of leave to bring this application for the purposes of s 19 of the Succession Act. 36 I have noted the medical evidence as to CB's present mental and physical condition. I am satisfied that CB has no testamentary capacity and will never regain any testamentary capacity. 37 I have regard to the size of the estate. As I have said, it is large and there may be a considerable sum left on CB's death despite her long life expectancy. It is therefore possible that the estate on CB's death would be such as to enable a generous testamentary provision to be made for those deserving of her testamentary bounty. That, of course, is mere possibility because the medical and other expenses of looking after CB during her lifetime will be very high; it may turn out that there is nothing, or very little, left of CB's estate when she dies. 38 The will which is proposed by AB seeks to have AB appointed as executor and in default SB. The proposed will then gives the whole of the estate to AB if she survives CB, but if she predeceases, to SB. 39 In case both AB and SB predecease, the will provides a gift over of the whole of the estate to two charities in equal shares. The evidence is that CB, before her injury, was involved in the work of those two charities. It seems to me, as the evidence presently stands, that there is a reasonable likelihood, i.e. a "fairly good chance", that CB would have wished to make provision for those two charities if she had had testamentary capacity and if she knew that her distributable estate would be large. 40 The will makes no provision for FB. As I have said, it is clearly the purpose of this application to counter what would otherwise occur if CB died intestate: in those circumstances, both AB and FB would take. The statutory will is designed to exclude FB from testamentary provision so that the estate goes wholly to AB or wholly to SB or, in the event they predecease CB, wholly to the two charities. 41 It seems to me that there is, to quote the words which I have used in Re Fenwick, "a fairly good chance" that the proposed will, in excluding FB, would represent the actual intentions of CB if she were now of testamentary capacity and aware of the present circumstances. 42 I accept that, for whatever reason, FB has removed himself from responsibility and care within the family, at least from the time that CB was aged nine. I accept that there has been no normal relationship of father and daughter, at least in an on-going caring sense between the two of them since that time. 43 It seems to me that there is a fairly good chance that the proposed will reflects what a reasonable person in CB's position would do to recognise in her testamentary provision the fact that AB will have devoted the whole of the remainder of her life to the very onerous task of caring for CB. A reasonable person in CB's position would recognise that the overwhelming moral responsibility which she had in regard to testamentary provision was in favour of AB. 44 It seems also to me that there is a fairly good chance, in the sense in which I have used that phrase in Re Fenwick, that if AB predeceased CB, CB would recognise that her testamentary obligation was directed towards SB and, if not to him, then to the two charities with which she was actively involved. 45 I do not think that one can say, having regard to the absence of FB in the family involvement for now more than ten years, that there is a fairly good chance that CB would wish to make any provision for him. 46 As matters stand, therefore, I am persuaded that the proposed will is one that CB is reasonably likely to have made. 47 There is no evidence that CB expressed any testamentary intention before her accident, but in accordance with the reasoning which I have expounded in Re Fenwick, I think that it is reasonable to suppose that had she been aware that she would have a substantial estate to dispose of she would have intended to make a will disposing of that estate. 48 I am satisfied that there is presently no eligible person within the meaning of the family provision legislation who could make an application for provision out of CB's estate were she to die now. I am also satisfied that having regard to her total dependency upon her mother and her complete inability to communicate, there is no likelihood that, however long she lives, she will form such a relationship with any other person such as to render that person an eligible person for the purposes of the family provision legislation. 49 The circumstances, as they are now, warrant the granting of leave to bring the application under s 19. I am satisfied that those circumstances are unlikely to change between now and the time that any final order may be sought authorising a will. 50 As I have explained in Re Fenwick, where the evidence in the leave application reveals a state of affairs which 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 grant leave under s 19 and to proceed with making a final order. That is what I now do. For the reasons I have given, I am satisfied that it is appropriate to make the final order as sought. Orders

51 Pursuant to s 19 Succession Act, I grant leave to AB to make an application to the Court for an order under s 18. 52 I make a declaration that CB is a person who lacks testamentary capacity. 53 Pursuant to s 18 of the Act, I authorise a will to be made on behalf of CB in the form which is annexed to the affidavit of AB dated 26 June 2009. 54 I order, pursuant to s 23 of the Act, that the said will be signed by the Registrar and sealed with the seal of the Court. 55 I order that the costs of this application be paid out of the estate of CB.

oOo -

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.

Protected Estates Act 1983(NSW)

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