ANALYSIS
58The Succession Act speaks with different, inconsistent voices in answer to the question whether a statutory will is "made" by, and at the time of, an order under s 18(1) or simply "authorised" to be made by, and upon, the occurrence of the condition for which s 23 provides.
59The language of the two sections is, in itself, equivocal. Section 18(1) speaks of "an order authorising a will to be made" in specific terms approved by the Court. Section 23 is predicated on the existence of "a will that is made or altered by an order under s 18"; and it does not, of itself, mandate that that will have the features described in s 23(1)(a) and (b) as a condition of validity. It merely provides that the will "is properly executed if" it is in writing, signed by the Registrar and sealed with the seal of the Court.
60On one view, the operation of s 23(1) depends upon whether a statutory will is "made" or "altered" by a section 18(1) order. That is because, first, by virtue of s 6(6) of the Succession Act, the requirement in s 6 for a will to be signed by or on behalf of a testator does not apply to "a will made by an order under s 18"; and, secondly, s 14(1)(c) provides that an alteration to a will after it has been executed is not effective unless, inter alia, it is "made for and on behalf of a person who does not have testamentary capacity by the authority of an order under s 18 and satisfies the requirements for such a will set out in s 23". To describe the contingency for which ss 23(1)(a) and (b) provide as "requirements for" a statutory will may be, on a close reading of s 23, an overstatement of its effect.
61Section 26 is evidently based on an assumption that a statutory will, whether made in NSW or elsewhere, will have been, in all cases, "executed" at the time it was "made".
62The Act makes no provision, unless it be found in s 18(5), for a situation in which an order is made under s 18(1), but the contingency for which s 23 provides does not occur.
63An order under s 18(1) is, let it be remembered, an order made by the Supreme Court (as far as any Australian Court can be, a superior court of record), after consideration of statutory criteria, not uncommonly after a contest, in proceedings affecting a person who, for want of testamentary capacity is, or may be, in need of an exercise of the Court's protective jurisdiction.
64Whether or not, in subsequent proceedings, a finding made by the Court on the determination of an application for a s 18(1) order could support an issue estoppel may be a question for another day; but, absent a statutory imperative, it would be an oddity for the Court's order to be deprived of all effect merely because of the non-occurrence of what appears, on the face of s 23(1), to be an administrative, rather than a judicial step.
65The provisions of ss 18(6)-(7) and 53 point in the opposite direction. A failure to deposit a will made under s 18(1) with the Registrar, or a failure of the Registrar to retain it, under Part 2.5 of the Act does not affect the validity of the will.
66Both s 18(3) and s 23(2) respectively direct that a s 18(1) order is not to be made, and the Registrar is not to sign a statutory will, if the testator is not alive. However, neither provision provides for, or effects, an abatement of proceedings.
67Nor is there anything in s 18 that would, as a matter of jurisdiction, prevent the Court from directing the Registrar, by the authority of an order or direction under s 18(5), to sign and seal a statutory will duly authorised by a s 18(1) order. Section 23(2) is to be read as referring back only to s 23(1)(b), and as being subject to the power of the Court to "give any necessary related orders or directions".
68At the end of the day, the infelicities of expression found in the Succession Act must be subordinated to a beneficial construction of the Act, having regard to parliament's purpose or object in introducing the statutory will-making scheme for which the Succession Act provides and, in particular, s 23.
69The process of discovering that purpose or object should begin with an engagement with basic principles embodied in the Act, commencing with the concept of a "will".
70The definition of "will" in s 3(1) of the Act is expressed to be inclusive. It involves an element of circularity insofar as it incorporates a reference to the word "disposition", itself defined inclusively by reference to the word "will". Nevertheless, it appeals to a notion commonly understood in the Australian community.
71In English law, at the time of its reception in NSW, distinctions were drawn, in the law of succession, between real and personal property. Those distinctions reflected the historical importance of land tenure to the Crown and its subjection to the common law; feudal policy was hostile to the alienation of land without the consent of a lord. They also reflected an acceptance that succession to personalty was governed by the ecclesiastical law (under which a testamentary power over personalty could be exercised by a "nuncupative" testament) administered by the Church: WJV Windeyer, Lectures on Legal History (LBC, 2nd revised ed, 1957), pp 38, 56, 286. How this came about is commonly said to remain obscure: W Holdsworth, A History of English Law, volume 1 (7th ed, revised, 1956), p 625; TFT Plunkett, A Concise History of the Common Law (5th ed, 1956), Part 6; F Pollock and FW Maitland, The History of English Law before the time of Edward I (2nd ed,1898; reissued, 1968), volume 2, pp 325-326.
72Such distinctions find only faint reflection, and no material, operative significance, in the Succession Act. The inclusive definitions of "will" and "disposition" provide confirmation of that. The words "will" and "devise" were once associated with the inheritance of land; the words "testament" and "bequest" were once associated with the passing of ownership in chattels: RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in NSW (LBC, Sydney, 1996), pp 5-10; The Oxford History of the Laws of England, Vol 1 (RH Helmholz, The Cannon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, 2004), pp 398-399. Now, in NSW, nothing necessarily turns on such linguistic distinctions.
73However, the Succession Act's inclusive definitions of "will" and "disposition are consistent with the proposition that a person's last "will and testament" (to use a composite expression still in common usage) may, in principle, be oral. More accurately, perhaps, a requirement that it be in writing is not essential to the concept of a "will". It is only an incident of particular legislation governing the making and enforcement of a will. It is not a universal requirement. The importance of this, in the current context, is that, before it is reduced to writing, an order under s 18 of the Succession Act authorising a will to be made may be pronounced orally. Whatever force or effect s 23 of the Act may have, the terms of s 18 do not mandate that an order made under s 18 (1) be in writing at the time it is made.
74The current generation of Australians is so accustomed to a will taking the form of a document that it is easy to overlook the fact that, in former times, under Anglo-Australian law, effect might be given to an oral ("nuncupative") will in certain circumstances.
75The Statute of Wills 1540 (32 Henry VIII chapter 1), which permitted a will of land to be made, merely required such a will to be "in writing"; the Statute of Frauds 1677 (29 Charles II chapter 3) required that a devise of lands be in writing, signed and witnessed (by three or four credible witnesses); but the requirement of signing and witnessing of wills is generally dated from the Wills Act 1837 (7 William IV and I Victoria chapter 26): TFT Pluncknett, A Concise History of the Common Law, p 740.
76The 1837 Act provided for a will to speak, with regard to the real and personal estate comprised in it, from the death of the testator, and not, as formerly, from the date of the will: A Underhill, "Changes in the Law of Real Property" in the Council of Legal Education's A Century of Law Reform (MacMillan, London, 1901), pp 321-322. The Act was adopted in NSW in 1839: JM Bennett, A History of the Supreme Court of NSW (LBC, Sydney, 1974), p 133; Geddes, Rowland and Studdert, Wills, Probate and Administration Law in NSW, p 16.
77The concept of a "privileged will" (a nuncupative will), able to be made by a soldier or seaman on active service, without formality and whatever the age of the testator, had its origins in the Statute of Frauds, s 23. It survived in NSW, in one form or another, via s 10 of the Wills, Probate and Administration Act, 1898 NSW, until, on the recommendation of the NSW Law Reform Commission (Report 46 (1986), Wills - Execution and Revocation), it was repealed in 1989.
78At the time of repeal of s 10, and on the recommendation of the Commission, s 18A was inserted in the Wills, Probate and Administration Act. Its equivalent is now found in the Succession Act s 8.
79Viewed over time, the common, enduring features of a "will", under NSW law, are that: first, there must be a declaration of an intention, ascribed to a testator, providing for the distribution or administration of property after the testator's death; secondly, that declaration must be ambulatory, in that it is intended to take effect only on the death of the testator, and is revocable in the meantime; and, thirdly, it can make a person (an executor) a representative of the testator.
80In the case of an ordinary will, made by an adult with testamentary capacity, these features find reflection in provisions of the Succession Act that govern the process of making, and the form of, a will rather than in the statutory definition of the word "will". For example, s 4(1) provides that a person may dispose, by will, of property to which the person is entitled at the time of his or her death. Section 6(1) conditions validity of a will, inter alia, on its being in writing and signed by the testator. Section 6(2) requires that the signature of the testator be made with the intention of executing the will. Section 11 provides that a will may be revoked, inter alia, by a later will or some writing declaring an intention to revoke it.
81In the ordinary case, the existence of a testamentary intention, evidenced by writing formally executed, is the core concept of a current day, NSW will. This is confirmed by ss 8 and 27 of the Succession Act, each of which provides a form of dispensation from the ordinary strictures of will-making. Section 8 turns on the existence of a document, or part of a document, that purports to state the testamentary intentions of a deceased person without due execution. Section 27 provides for rectification of a will that, because of one form of error or another, fails to carry out the intentions of the testator.
82In both cases, relief from the strict requirements of a will is available from the Court, contingent upon a judicial finding about the testamentary intentions of a deceased person.
83Sections 8 and 27 are both, by their nature, called in aid of the due administration of the estate of a person who has died, not a person for whom death lies in prospect.
84Persons lacking testamentary capacity might be counted amongst the "living dead", in need of special care and protection before their physical demise. They include amongst their number some (but, having regard to Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 384, not all) of the people for whom financial management orders, or guardianship orders, might be made, or enduring powers of attorney might be supervised, under legislation other than the Succession Act: namely, the Guardianship Act 1987 NSW, the Powers of Attorney Act 2003 NSW; and the NSW Trustee and Guardian Act 2009 NSW.
85The statutory scheme for authorisation of a will to be made on behalf of a person lacking testamentary capacity is an important, integral part of legislation enacted by the NSW Parliament in aid of the Court's protective jurisdiction, for the benefit of those in our community who, for one reason or another, are incapable of managing their own affairs and, incidentally, for the benefit of those who (in a broad sense) constitute their families. Careful always to place concern for the incapacitated person (a person in need of protection) at the centre of all deliberations, the legislation can, in an appropriate case, facilitate an orderly management of his or her affairs, recognising that, in a modern, affluent society, death appears as a process before it arrives as an event.
86The proceedings which culminated in the making of an order for a statutory will in the current case engaged most of this legislation. The orders made on 14 December 2012 included a declaration that Mrs Scott (now deceased) did not have the mental capacity to make a valid power of attorney at the time she had purported to execute an enduring power of attorney, together with orders committing management of her estate (property) to the NSW Trustee. The decision to make an order for a statutory will was made only after due consideration of the question whether a more expedient exercise of the Court's powers would be to leave the parties to such rights as they might have, in due course, to apply for a family provision order. They joined in inviting the Court to make an order for a statutory will.
87Conceptually, the radical step taken in legislation providing for a "statutory will" is the authorisation of a will to be made based upon the presumed intention of a person lacking testamentary capacity: Succession Act, 22 (b); Re Fenwick (2009) 76 NSWLR 22 at 54-57; Re Will of Jane [2011] NSWSC 624 at [73]-[84] and [98]. The fact that the Court's attention is directed towards determination of an actual, subjective intention, if any, does not preclude characterisation of the requisite intention as a modern form of legal fiction; cf, LL Fuller, Legal Fictions (Stanford UP, 1967), chapter 1.
88A finding by a judge of a testamentary intention attributable to a person lacking capacity, in fact, to form any such intention is not lightly made. However, in a case in which it is made, and made for the benefit of the incapacitated person, the Court should be slow to attribute to parliament a legislative intention to deprive the finding of legal effect for a subsequent want of formality. Section 33 of the Interpretation Act 1987 NSW enjoins the Court, in the interpretation of legislation, to prefer a construction that would promote the purpose or object underlying the legislation over one that would not promote that purpose or object.
89One should be mindful, also, that parliament deliberately chose the Court as the vehicle for the making of an order authorising a statutory will to be made, and must be taken to have accepted for that purpose the institutional structure, and ordinary processes, of the Court.
90The work of a registrar includes work of an administrative character. Registrars of the Court generally work within the framework of orders made by judges, and their decisions are subject to review by judges. That can be seen in the provisions of the Supreme Court Act (s 121) and the Uniform Civil Procedure Rules (r 49.19) extracted in this judgment.
91Section 23 of the Succession Act 2006 confers on the Registrar (or, more accurately, in the context of SCA s 119, a registrar) a ministerial function. That function stands in contrast to the functions of a judge under ss 18-22 of the Succession Act (referable, ultimately, to an application for an order under s 18(1)) in that it is not expressed in terms of a discretionary power conferred on a registrar and it is articulated by reference to no criteria of the type ordinarily attending a discretionary, judicial decision.
92The purpose or object of s 23 is nowhere expressly, or specifically, set out in the Succession Act. By inference from the Act itself, it appears to be fourfold.
93First, by providing for, or enabling, a statutory will to be signed by a registrar, the legislation genuflects in the direction of a community expectation that a "will" is generally signed by or on behalf of a testator.
94Secondly, by providing for there to be such a document, approximating the form of an ordinary will, parliament intended to emphasise that a statutory will is liable, like an ordinary will, to be revoked or altered by a later testamentary instrument duly made.
95Thirdly, by providing for a statutory will to be signed by a registrar parliament intended to facilitate physical control of the will being retained by the Court.
96Fourthly, by providing a practical means for that control to be exercised, parliament intended that the Court be in a position, in the interests of the incapacitated testator and the public generally, to facilitate the due administration of the testator's estate, not necessarily limited to his or her deceased estate.
97Nothing in the Second Reading Speech of the Attorney General, on the Bill that became the Succession Act, is inconsistent with this analysis (Hansard, NSW Legislative Assembly, 19 September 2006, p 1858 et seq) or the Explanatory Notes published in support of the Bill.
98Nor is anything inconsistent with it apparent in the report of the NSW Law Reform Commission (Report 68 (1992), Wills for Persons Lacking Will-Making Capacity), the 1997 Report of the National Committee for Uniform Succession Laws on the Law of Wills (Queensland Law Reform Commission Miscellaneous Paper 29 (December 1997)) or the NSW Law Reform Commission's Report No 85 (1998) on Uniform Succession Laws: The Law of Wills leading to enactment of the Succession Act in 2006.
99The recommendations of the NSW Law Reform Commission in its 1992 Report included the following:
(a)a recommendation (made by reference to English legislation then in force) that a statutory will ordered by the Court, or an alteration to an existing statutory will, be executed by the Registrar or Deputy Registrar in a manner prescribed by the rules of the Court: paragraph 2.22.
(b)a recommendation that a statutory will should have the same effect as a will executed under the Wills Probate and Administration Act 1898 (now, relevantly, the Succession Act, Part 2.1) based upon the Commission's view that it is appropriate to place statutory wills on the same footing as ordinary wills in all respects: paragraphs 2.23 - 2.28.
(c)a recommendation that the Family Provision Act 1982 NSW (now chapter 3 of the Succession Act) apply to statutory wills in the same way as ordinary wills: paragraphs 2.29 - 2.30.
(d)a recommendation that proceedings for the making of a statutory will (including any order made by the Court) should be open to the public, and that a statutory will should be a public document subject to the Court's discretion to order otherwise: paragraphs 2.32 - 2.33.
(e)a recommendation that statutory wills should be deposited in the Supreme Court Registry unless the Court otherwise orders (eg, on the application of a testator who has satisfied the Court that he or she has acquired or regained testamentary capacity): paragraph 2.37.
(f)a recommendation that provisions of the Supreme Court Rules dealing with procedures under the Protected Estates Act 1983 NSW (now found in the NSW Trustee and Guardian Act 2009 NSW), in relation to the management of estates of persons incapable of managing their own affairs, be amended to incorporate the procedures required for the operation of a statutory will-making scheme: paragraph 2.38.
100The 1997 Report of the National Committee included (at paragraphs 5.36 - 5.38) the following observations:
"... Should the authorised will be retained by the Registrar?
5.36 Sub-sections 7(9) and (10) of the Wills Act 1936 (SA) provide that an authorised will must be signed by the registrar, sealed with a seal of the court and retained by the registrar. Section 7(11) makes provision for the removal of the authorised will from the depository.
5.37 In view of the possibly controversial nature of the jurisdiction it is desirable that the will should be kept in the registry as this gives the court continuing control over the will created under its jurisdiction.
5.38 Although this is a procedural matter, it is nevertheless recommended because it allows the court to oversee the authorised will. It has, however, been suggested by a member of the National Committee that a failure to retain the will in the registry should not result in the will's invalidity. The National Committee agrees with that suggestion."
101The NSW Law Reform Commission's Report 85 of 1998 was, in form and substance, an endorsement of the National Committee's Report.
102As is apparent from the Second Reading Speech, and the Explanatory Notes, on the Succession Bill, these Reports (and in particular, the work of the National Committee for Uniform Succession Laws) were taken into account in the drafting of what became the Succession Act.
103Where, on the death of a person for whom a statutory will, has been made under s 18(1) of the Succession Act, an application is made to the Court for a grant of probate of the will, or other relief affecting its operation, no legislative purpose or object would be served by denying to an order made under s 18(1) continuing operation, subject to the ongoing control of the Court, merely because the contingency for which s 23 of the Act provides has not occurred. That is so, particularly, in a case (such as the present) in which the substance of the order, and the reasons for it being made, have been placed on the public record in Reasons for Judgment, published on the internet, in terms that permit the person for whom a statutory will has been made, and his or her family, to be identified.
104The central question posited for an answer at the commencement of this judgment asks whether a statutory will takes effect (generally or in some qualified way) upon the making of an order under s 18(1), or only upon the occurrence of the contingency for which s 23 provides. Upon the proper construction of the Succession Act, that question should be answered by according provisional effect to a statutory will upon the making of an order under s 18(1), recognising that such a will ordinarily acquires full status as a will of the deceased only upon the occurrence of the contingency for which s 23 provides, subject to any order or direction being given by the Court pursuant to s 18(5).
105The administrative process for which s 23 provides is a servant, not the master, of the judicial process that culminates in an order under s 18(1) and, by reference to s 18(5), the Succession Act allows for consequential orders or directions to be made as and when necessary to give full effect to the order authorising a will to be made.
106Where an order for a statutory will has been made under s 18(1) and the contingency for which s 23 provides has not occurred, the non-occurrence of the s 23 contingency provides an occasion for the Court, by reference to s 18(5), to consider whether, notwithstanding non-compliance with s 23, the will should be admitted to probate or be made the subject of other orders.
107It is not appropriate, in these proceedings, to attempt to limit the factors that might be taken into account by the Court when called upon to make a decision on that question. Any such decision must depend on the facts of the particular case, as disclosed by evidence and submissions bearing upon the decision then to be made.
108It is sufficient, for the purposes of the present proceedings, to record that an order for admission of the deceased's statutory will to probate is appropriate because: (a) all persons affected by the making of a statutory will for the deceased, and all persons party to the application for it to be made, have expressly consented to the will being admitted to probate on the application of the plaintiffs; (b) notice of the plaintiffs' intention to apply for a grant of probate of the statutory will has been published in the ordinary course, and no person (whether a prospective beneficiary or creditor of the deceased's estate, or a prospective applicant for family provision relief) has appeared in opposition, or given notice to the plaintiffs of opposition, to the application for probate; (c) the plaintiffs, as solicitors, have a professional standing independent of any person who is, or may be, beneficially interested in the estate; (d) no evidence has been adduced on the application for probate that might, reasonably or otherwise, be thought to call into question the propriety or prudence of the order authorising a statutory will to be made, or providing a ground for a review of the terms of that will; (e) the plaintiffs, with the acquiescence of all affected parties, have offered an explanation of the failure of all parties to ensure compliance with s 23; and (f) there is no public interest impediment to a grant of probate of the statutory will being made.
109In making an order that probate of the deceased's statutory will be granted to the plaintiffs, I record concluding observations about the nature of the grant and the extent to which it binds, in particular, the deceased's family.
110In these proceedings, probate is to be granted in common, not solemn, form.
111It would be open to the Court, in an appropriate case, to make an order for a grant in solemn form, bearing in mind that an object of the Succession Act is to place a statutory will on the same footing as an ordinary will in all respects. However, in the current proceedings, there is no necessity for, or utility in, a grant in solemn form. The only persons known to be affected by the making of the deceased's statutory will are those members of her family who have, by their provision of express formal consents, joined in the plaintiffs' application for probate.
112In accordance with probate practice (and whether the practice be justified by reference to concepts of estoppel or characterisation of a grant of probate as a remedy in rem), they are bound by the outcome of the current proceedings, as well as the earlier proceedings in which they each actively invited the Court to authorise the making of a statutory will: Osborne v Smith (1960) 105 CLR 153 at 158-159; Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]-[25]. In these proceedings, as in many others, despite the Court's compliance with s 22(e) of the Succession Act on the hearing of the application for a statutory will, and despite publication of a notice of intention to apply for probate in the proceedings, there remains (however remotely) a theoretical possibility that, at some future date, a person, presently unknown, might apply for an order that probate of the statutory will be revoked.
113In declining to make an order that probate be granted in solemn form, I take into account the greater ease with which the Court may order that a grant in common form be revoked: Tobin v Ezekiel [2012] NSWCA 285 at [3]-[18], especially [8]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [135]-[142]. Although I do not anticipate that any application for revocation of the grant to be made in this case will ever be made, I am mindful of a need to ensure that whatever is done for or in the name of a person (such as the deceased) in need of the Court's protection should be everything that is needed, but no more than is needed, for the benefit of that person. Even in death, an object of the Court's protective jurisdiction is entitled to due consideration as an individual: Re Fenwick (2009) 76 NSWLR 22 at 51 [132]; Re Will of Jane [2011] NSWSC 624 at [99].
114In light of the evidence presently before the Court, a grant of probate in common form is sufficient to meet the justice of the case. No more than that is, in the interests of the deceased, necessary.
115Accordingly, I make the following orders:
(1)Order that Annexure "A" to the orders made by the Court on 14 December 2012 in proceedings respectively numbered 2010/426938, 2011/251591 and 2012/334076 (the statutory will authorised by the Court to be made on that date) be admitted to probate as the last will and testament of the late Marjorie Scott ("the Deceased") notwithstanding its form and the absence of any execution of it by a registrar of the Court.
(2)Order that the proceedings be referred to the Registrar to complete a grant of probate of the Statutory Will to the plaintiffs.
(3)Order that the administration bond and sureties be dispensed with.
(4)Order that further compliance with the Probate Rules in respect of the plaintiffs' application for probate be dispensed with.
(5)Order that the costs of the plaintiffs referable to the summonses respectively filed on 29 August 2013 and 10 January 2014 be paid out of the estate of the Deceased on the indemnity basis.
(6)Reserve liberty to apply.