Application by Peter Leslie Kelso [2010] NSWSC 357

1 HIS HONOUR: This is an application under s 18 of the Succession Act 2006 (NSW) (the Act) for an order authorising a Will to be made on behalf of a person known as Hua Tippins (Ms Tippins). The brief facts relating to this application are these: (a) Ms Tippins is in a hospital and is currently in a coma. She was on a life support system, which I understand has been turned off. The evidence before me suggests that she could die at any time. (b) Ms Tippins came to Australia in 2000 apparently to marry Mr Greg Tippins. It appears she became an Australian citizen and she lived with Mr Tippins for a number of years. During that time she was the subject of domestic violence on a number of occasions. Ultimately, in February 2009, she sought refuge at the Toukley woman's refuge, trading as Elandra Women's and Children's Service in Norah Head, following physical violence against her which caused her substantially to lose the use of her right arm. While there in August 2009, she approached Mr Peter Kelso to obtain advice on a claim under the Victims Support and Rehabilitation Act . Two claims were made. One was successful and led to a judgment in her favour of approximately $9,000. The other claim is the subject of an appeal. (c) It appears that Ms Tippins has not made any Will. The consequence of that is that if she dies Mr Tippins will inherit the whole of her estate. Apart from Mr Tippins there appear to be two other people or entities in Ms Tippins' life. The first is a person known only as China Mum, who resides in China. Although that description is vague, it seems apparent from the inquiries the Gosford Hospital has made that she is capable of being contacted and identified. The other entity in Ms Tippins' life is the women's refuge that I have referred to. It appears from the evidence that has been presented to me that Ms Tippins formed a close bond with the people working at that refuge. 2 An application under s18 of the Act involves two elements. The first is that under s19 of the Act an application for leave to the Court must be made in order to proceed with an application under s 18 of the Act. The second is that an application under s 18 itself must be made. However, under s 20 of the Act the Court may give leave and allow the application for leave to proceed as an application for an order under s 18. I give that leave. 3 Section 19 requires a person making an application for leave to give the Court information set out in that section. The application is made by Mr Kelso who, as I have said, was the solicitor acting for Ms Tippins in relation to her victims compensation claim. The information that must be given to the Court unless the Court otherwise directs is the following: "(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, (l) any other facts of which the applicant is aware that are relevant to the application."

4 I am satisfied that the requirements of this section have been met. I do not think it is necessary for me to go through each paragraph of section 19(2) in order to demonstrate that the material required by that section has been given, but I should deal with some of the sub-paragraphs of that sub-section. 5 Paragraph (b) requires satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under s 18 is sought. In my opinion, the affidavit of Dr Scott-Whyte satisfies this requirement. According to the evidence he gives in his affidavit, Ms Tippins has suffered severe brain injuries which make it unlikely that she will ever regain consciousness. Even if she did, Dr Whyte's evidence is that she has suffered damage to almost all areas of her brain including language, memory and other areas of thinking. In my view, this is clear evidence that Ms Tippins lacks testamentary capacity. 6 Paragraph (d) requires the Court to be given a draft of the proposed Will for which the applicant is seeking the Court's approval. A draft Will was provided to me. After some discussion with counsel representing the applicant, some changes to this draft Will have been made and the applicant now contends that that Will as amended is the Will for which he seeks approval. 7 Paragraph (f) requires the Court to be given any evidence available to the applicant of the likelihood of the person - in this case, Ms Tippins - acquiring or regaining testamentary capacity. For the reasons I have already given, I think this evidence has been provided demonstrates that that likelihood is low. 8 Paragraph (h) requires the applicant to provide any evidence available to the applicant or can be discovered with reasonable diligence of any persons who might be entitled to claim on the intestacy of Ms Tippins. The evidence is not entirely clear on this point. It points strongly to the fact that the only person who falls into this category is Mr Tippins. There is, however, some suggestion in the material that has been provided to me that Ms Tippins has a sister. However, the evidence is that Ms Tippins never mentioned a sister to anyone at the refuge or to Mr Kelso. On the evidence available to me, I do not think that Ms Tippins has a sister who is alive. 9 Paragraph (i) requires the applicant to give any evidence available to the applicant of the likelihood of an application being made under chapter 3 of the Act in respect of the property of the person. The evidence before me suggests that the only possible applicants are the persons known as China Mum and Mr Tippins. For the reasons that I have referred to I think it is highly unlikely that Mr Tippins would have a claim under chapter 3 in view of his conduct. 10 Section 22 of the Succession Act provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied of five matters. 11 The first of those is that there is reason to believe the person in relation to whom the order is sought is or is reasonably likely to be incapable of making a Will. For the reasons I have already given, having regard to the evidence of Dr Whyte, I think Ms Tippins is incapable of making a Will. 12 The second requirement is that the proposed Will be or be reasonably likely to be one that would have been made by the the person, that is to say Ms Tippins, if she had testamentary capacity. In my view, the Will which is the subject of this application as amended meets this requirement. On the evidence before me, it seems inconceivable that Ms Tippins would want any of her estate to pass to Mr Tippins. As I have already mentioned, the only other two persons or entities in her life appear to be the refuge and the person known as China Mum. The proposed Will makes provisions for both of those. I am satisfied that a Will in that form will be consistent or is consistent with what Ms Tippins would have wanted. 13 The third requirement is that the Court must be satisfied that it is or may be appropriate for the order to be made. For the reasons I have already given I think this requirement is satisfied. 14 The fourth requirement is that the applicant for leave is an appropriate person to make the application. In my view, Mr Kelso is an appropriate person to make the application. He has acted as Ms Tippins' solicitor. He has no real interest in the outcome of this application. The fees that his firm and, indeed, counsel retained by him propose to charge in connection with this application, are minimal and I think it would be appropriate for Mr Kelso to charge reasonable fees in relation to the administration of Ms Tippins' estate. 15 The fifth requirement is that adequate steps have been taken to allow representation of all persons with any 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. This raises the question whether adequate steps have been taken to allow Mr Tippins and China Mum to be represented at this hearing. It is with this requirement that I have most difficulty. However, I have concluded that this requirement also is satisfied so far as Mr Tippins is concerned. Notice of this application was given to him earlier this afternoon. In any event, I find it difficult to see how it can be said that he has a legitimate interest in the application given his conduct. As to China Mum, it seems to me the question of what adequate steps are is a question that needs to be judged in the particular context of the case. In this case, the evidence is that China Mum is an elderly woman resident in China. It is clear that this application must be dealt with as a matter of urgency, if it is to be dealt with at all. In those circumstances, I do not think that s 22(e) requires China Mum to be notified of this application before it can be dealt with. 16 Having regard to what I have just said I think it is appropriate the Court make orders in terms of paragraphs 1 - 4 of the orders initialled by me and dated today's date. I also order that the costs of this application be paid out the estate of Ms Tippins on a solicitor client basis. **********

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