Boulton v Sanders & Ors [2004] VSCA 112

COSTS - Whether costs of the unsuccessful application for leave payable from testatrix's estate - Costs not payable where estate not party nor represented - No general entitlement to costs of an unsuccessful application (not made by independent administrator) from estate of incapacitated person on basis that there was 'fair case of dispute' - English decisions distinguished.

2. In this appeal I have had the opportunity of reading the reasons for judgment of Dodds-Streeton, A.J.A. and, for the reasons she has stated, I consider that this appeal should be dismissed. It is sufficient to add that none of the evidentiary material before the Court is sufficient to establish that the will proposed by the appellant accurately reflects the likely intentions of Ms Sanders. I agree with Dodds-Streeton, A.J.A. that care should be taken in applying decisions under the English legislation over the years permitting the courts to make a will for a person under disability and that, to the extent that any of the decisions of judges of the Trial Division have sought to apply the interpretation given by the English courts, those decisions in this jurisdiction should be treated with caution.

7. I have read the very comprehensive reasons prepared by Dodds-Streeton, A.J.A. I agree with her Honour that the appeal should be dismissed, and for the reasons given.

13. The appellant, Ms Boulton, is a long-standing family friend of Ms Amy Sanders. Ms Sanders is currently ninety years of age. She resides at a special accommodation facility for aged persons. Since late 2000 she has suffered from dementia and has lost her testamentary capacity. On 27 October 2000 the Public Advocate was appointed the limited guardian of Ms Sanders and Ms Boulton was appointed administrator of her estate pursuant to the Guardianship and Administration Act 1986. By amended originating motion filed 4 March 2004, Ms Boulton, as plaintiff below, sought leave pursuant to s.26 of the Wills Act 1997 ("the Act") for an order authorising a "statutory will" to be made on behalf of Ms Sanders.

16. Ms Sanders' assets comprise investments currently valued at $929,000. Ms Sanders has an existing will which she made in 1997 prior to her loss of testamentary capacity. The validity of the 1997 will is not disputed. The principal beneficiary under that will was Ms Sanders' long-term companion, Ms Ruth Coulsell, who predeceased her, dying on 14 July 2000, several months before Ms Sanders' loss of testamentary capacity was established. The 1997 will provided for some specific pecuniary legacies to nieces, nephews, friends and charities. Ms Coulsell received the specific devise of Ms Sanders' residence. She was also the sole beneficiary of the residuary estate. There was no provision for a gift over of the residuary estate in the event of Ms Coulsell predeceasing Ms Sanders. In consequence, although Ms Sanders has a valid will there is now an intestacy of the residuary estate. As the specific legacies are small relative to the value of Ms Sanders' current assets, the residuary estate is likely to constitute the most valuable part of her deceased estate.

19. Under the intestacy Ms Sanders' nieces and nephews (of whom there are ten currently surviving) will take the residuary estate upon her death pursuant to s.52 of the Administration and Probate Act 1958 . Ms Sanders maintained varying degrees of contact with some of her nieces and nephews but had little or no contact with others.

22. Three previous wills of Ms Sanders have been located. Under those wills:

(a) Ms Coulsell was always the principal and the residuary beneficiary;

(b) specific legacies were made to a set of charities and persons the composition of which changed from will to will but which always included some nieces and nephews and (with one exception) Ms Boulton;

(c) in the event of Ms Coulsell predeceasing the testatrix there was a gift over of the residuary estate to persons and charities comprising (with one minor exception) a sub-set of the specific legatees.

28. Ms Boulton as plaintiff sought leave to apply pursuant to s.26 of the Act for an order authorising a proposed will. The proposed will retained the specific legatees of the 1997 will. It provided for the residuary estate to be divided into eight equal shares and given to Ms Boulton, two nieces, two nephews, the Peter MacCallum Cancer Institute (who would each receive one share) and Anglicare Victoria (which would receive two shares). For Ms Boulton, it was contended that the dispositions under the proposed will reflected the pattern of Ms Sanders' previous wills and thus accurately reflected her "likely intentions" as required by s.26(b) of the Act.

31. The learned trial judge ordered that the application for leave under s.26 of the Act be dismissed. She also dismissed the plaintiff's application that the costs of the proceeding be paid out of Ms Sanders' estate, ordering instead that the plaintiff pay the defendants' costs of the application on a party and party basis. The appellant appeals from those orders.

35. The determination of the appeal requires this court to construe the provisions of Part 3 Division 2 of the Act, which introduced an unprecedented jurisdiction in Victoria for the court to authorise a will made on behalf of a person who lacks testamentary capacity.

39. The legislation contemplates a two-stage procedure for the authorisation of a statutory will. First, an application under s.26 of the Act for leave to apply for an order under s.21. Secondly, an application under s.21 of the Act for an order authorising a will to be revoked or made in specific terms approved by the court[1].

42. Section 28 of the Act specifies the information which the court may require in support of an application for leave, which includes a draft of the proposed will for which the applicant is seeking approval. The requirement for leave permits baseless or unmeritorious applications to be screened out at an early stage. However, in a clear case, on the leave application under s.26 the court may proceed to determine the application under s.21.

45. Under s.26 three conditions must be satisfied in order to obtain a grant of leave. The applicant must establish:

(a) want of testamentary capacity;

(b) a proposed will (or revocation) which accurately reflects the likely intentions of the person if he or she had testamentary capacity;

(c) reasonableness in all the circumstances that the proposed will or revocation be authorised.

51. Want of testamentary capacity and the accurate reflection of likely intentions are matters of fact. The third condition, that of reasonableness, involves the exercise of curial discretion.

54. The requirement of accurate reflection of likely intentions under s.26(b) appears to restrict the court to the assessment of the terms of the proposed will advanced by the applicant. In contrast, s.21 confers a power to authorise "a will to be made in specific terms approved by the Court". That suggests that where the court is satisfied that a proposed will fundamentally fulfils the condition in s.26(b) but requires adjustments, it can modify, alter or re-draft the terms of the proposed will in order to perfect its conformity to the testator's likely intentions.

57. The relevant provisions of the Act are as follows:

Section 21. "(1) The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity (2) Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application. (3) The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made. Section 22. "In considering an application for an order under section 21-- (a) the Court may have regard to any information given to the Court in support of an application for leave under section 28; and (b) the Court may inform itself of any other matter in any manner it sees fit; and (c) the Court is not bound by the rules of evidence. Section 23 - "In making an order under section 21, the Court may make any necessary related orders or directions. ... Section 26 - "Before granting leave to apply for an order under section 21, the Court must be satisfied that-- (a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and (b) the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity; and (c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person.

62. The amendments to the Act permitting the execution of a court-authorised "statutory will" on behalf of a person lacking testamentary capacity were introduced by the Wills Act 1997 .

65. The central requirement in s.26 of the Act that the proposed will accurately reflect the testator's "likely intentions" was not derived from, contemplated or explained by the Report of the Chief Justice's Law Reform Committee 1985 or the Final Report of the Victorian Law Reform Committee 1995, which both recommended the introduction of a statutory will-making power. The United Kingdom legislation on which the recommendation of the Chief Justice's Law Reform Committee 1984 was based did not include a requirement that a statutory will reflect the testator's "likely intentions". That important difference between the United Kingdom legislation and the legislation ultimately enacted in Victoria limits, without excluding, the relevance of decisions based on the United Kingdom legislation to applications arising under the Victorian provisions. In the cases decided under Part 3 Division 1 of the Act, it has been consistently recognised that the essential task of the court under the Victorian legislation is to determine whether the proposed will accurately reflects the likely intentions of the testator. In contrast, s.102 of the Mental Health Act 1959 (U.K.) permitted the court to take into account many different circumstances, including the testator's reasonable obligations, both legal and non-legal.

69. The Mental Health Act 1959 (U.K.) (as amended by the Administration of Justice Act 1969) introduced a power to make a will for a patient. The Mental Health Act 1959 (U.K.) relevantly provided:

"102. (1) The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient - ...

(b) for the maintenance or other benefit of members of the patient's family,

(c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, ...

(2) In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient... but subject to the foregoing provisions of this subsection the judge shall, in administering a patient's affairs, have regard to... the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable."

"103. (1) Without prejudice to the generality of the foregoing section, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section, and in particular may for those purposes make orders or give directions or authorities for - ...

(d) the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in para(b) and para(c) of subs(1) of the foregoing section..."

80. A new paragraph (dd) was inserted into s.103 by the Administration of Justice Act 1969 (U.K.) in the following terms:

"(dd) The execution for the patient of a will making any provision (whether by way of disposition of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered... "

84. The will-making power conferred upon the court by the above and successive United Kingdom legislation[2] is an adjunct of its general power to manage and deal with the property and affairs of a patient for the specified statutory purposes, as part of the parens patriae jurisdiction of the Court of Protection.

87. As Megarry V.-C. recognised in In Re D. (J.)[3] the same propositions are relevant to making a will and to making a settlement for a patient, as both matters are governed by the same general statutory provisions.

90. Under the United Kingdom legislation leave to apply is not required. The court is not limited to authorising a proposed will which is presented to it. Rather, the court itself conducts a wide-ranging assessment of relevant factors and decides what provisions to insert in the will in accordance with the statutory purposes, including the benefit of the patient, his family, and making provision for persons and purposes for whom or which the patient might be expected to provide if he were not mentally disordered. Although the actual, and not a hypothetical patient, is to be considered "the will is being made by the court and so by an impartial entity skilled in the law, rather than the actual patient, whose views while still of a sound disposing mind might be idiosyncratic and far from impartial"[4].

93. Megarry V.-C. stated that the task of the court is "to make a disposition of the patient's estate according to the principles or factors which I have stated and the general requirement of fairness and appropriateness for all concerned."[5]

96. In In Re D. (J.)[6] the patient was an elderly widow suffering from dementia, who both before and after the onset of her condition had resided with a daughter, Mrs A. Mrs A had relinquished her employment and incurred expenses in order to care for the patient. The effect of the patient's existing will was to dispose of her estate equally between her five children, as a specific devise of her house to Mrs A had been adeemed by sale. Megarry V.-C. directed a statutory will under which Mrs A would receive a substantially greater legacy than the other children (equivalent to half the patient's estate) in order to reflect her special claims. The balance of the estate was to be distributed equally between the patient's remaining children.

99. Sir Robert Megarry, V.-C. enunciated the following principles, which he acknowledged to be neither exhaustive nor very precise:

"1. It is to be assumed that the patient is having a brief lucid interval at the time when the will is made.

2. During the assumed lucid interval full knowledge of the past and a realisation of the future prognosis is to be attributed to the patient.

3. The actual patient and not a hypothetical patient must be considered. Making due allowance for the patient's known antipathies or affections, provided they are not `beyond reason' the court is to do for the patient what the patient would fairly do for himself, if he could.

4. The patient should be envisaged as advised by competent solicitors during the hypothetical interval.

5. In all normal cases the patient is to be envisaged as taking a `broad brush' to the claims on his bounty, rather than an accountant's pen."

107. In Re C. (a patient)[7] orders were sought under the Mental Health Act 1983 (U .K.) for a statutory will for, and immediate gifts from, the sizeable estate of an elderly mental patient who had had since birth, "little memory, understanding or capacity to communicate."[8] Hoffman, J., after pointing out that there was no material on which to construct a subjective assessment of the patient's wishes, observed[9]:

"I recognise the difficulty in forming a view of what might have been expected from a person who has never enjoyed a rational mind. But I think that in those circumstances the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption... I do not think it is necessary for the court to be satisfied that the patient would definitely have chosen one particular way of giving effect to them rather than another...The court cannot of course indulge its own whims in these matters. The gifts and will it makes for the patient must be capable of being explained as something which the patient `might be expected to provide'. But I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, says `might' rather than `would be expected to provide'. In matters of detail, there must be a range of choices which would be equally valid."

Report of Chief Justice's Law Reform Sub-Committee 1985

112. The Report of the Chief Justice's Law Reform Sub-Committee "Wills for Mentally Disordered Persons"[10] 1985 considered the desirability of conferring upon the Supreme Court the same jurisdiction to direct or authorise the execution of a will or codicil for an infirm person as had been conferred on the Court of Protection by Part 3 of the Administration and Justice Act 1969 (U.K.) and amending legislation. The Sub-Committee concluded that the introduction of legislation "along the same lines[11]" was desirable for Victoria, "although the system should be slightly different from that in the United Kingdom[12]." The Sub-Committee recommended legislation that, like the United Kingdom legislation, empowered a Judge to order the making of a will for a person whom he had reason to believe was incapable of making a valid will for himself[13]. It considered it desirable to "avoid the need for a full, and possibly expensive, trial on the issue of testamentary capacity"[14].

115. The Sub-Committee contemplated that most applications would be made by the Public Trustee[15] but that it should be open to any person other than the Public Trustee to make application with the leave of a Master.[16]

118. The Victorian Law Reform Committee's Final Report "Reforming the Law of Wills" May 1994,[17] also recognised the need for legislation to address the situation where a testator who had lost testamentary capacity subsequently survived for a number of years, during which time his or her will became dated due to unforeseen circumstances, such as the death of a principal beneficiary[18]. The Committee considered that the court should be empowered to make "a will after the death of the incapacitated person at a time when the extent of the estate available for distribution and the claims of persons for provision or better provision can all be before the court"[19]. It also considered that there should be power to make a will "in the testator's lifetime when better evidence of relevant matters might be available"[20]. While recognising suggestions of conflict with testator's family maintenance legislation, the Committee considered that that statutory wills legislation had a different function and purpose[21].

121. The Report acknowledged that although proposed statutory wills legislation had been drafted, no Australian state had as yet introduced it, apparently due to reservations about its desirability.[22] It acknowledged that a statutory will-making power would impinge upon succession law by enabling a provision to be made for a person who was not entitled to it under the will, intestacy or testator's family maintenance legislation[23]. It also recognised a potential anomaly in that such provision could be made from the estate of a person who lacked testamentary capacity, but not from the estate of a competent testator[24].

124. While the Report contemplated that most applications would be made by the Public Trustee, it recommended that any person should be entitled to make an application[25]. It recommended that leave should be necessary but that it should be possible for the court to allow a leave application to proceed immediately to an application authorising the making of a will in "very clear" cases.[26] It further recommended that there be statutory guidance on the information to be provided to the court[27].

127. The Report stated that dispositions made in a will and pursuant to the statutory policy on intestacy should not be lightly set aside and that it should be made clear that the court is not bound to make an entire will for an incapable person[28].

130. The Committee considered that a judge exercising the jurisdiction should have reason to believe that the person concerned was incapable of making a valid will[29] and should be satisfied that the proposed alteration was one which would have been made by the person if he or she had testamentary capacity. The court should also be 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"[30].

133. The Committee recommended that the court should have power on hearing the application for leave to alter the terms of the proposed will and to assess the appropriateness of the applicant and the adequacy of the steps taken to notify all interested parties. It recommended that where the court is satisfied with the "propriety of the application it should be able to move immediately to the application for authorisation and allow it"[31].

136. The Committee recommended that the court should have power on hearing the application for leave to alter the terms of the proposed will and to assess the appropriateness of the applicant and the adequacy of the steps taken to notify all interested parties. It recommended that where the court is satisfied with the "propriety of the application it should be able to move immediately to the application for authorisation and allow it"[32].

140. In the Second Reading Speech of the Wills Bill[33] the Attorney General referred to the 1994 Law Reform Committee Report and noted that the Wills Bill adopted a majority of its recommendations[34]. The Attorney General referred to the statutory will-making power. She stated that it would benefit persons lacking testamentary capacity where:

"a person makes a valid will and subsequently loses testamentary capacity; or a person has testamentary capacity, never makes a valid will and subsequently loses testamentary capacity; or a person never had testamentary capacity and never makes a valid will"[35].

144. The Attorney General did not refer to the fact that the statutory will provisions took a different form from that contemplated by the Law Reform Committee's Report.

147. The terminology ultimately adopted in the Victorian legislation has also been employed in the South Australian Wills Act 1936 as amended by the Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Act 1996 No. 36 of 1996[36] which came into operation on 10 June 1996. The Explanatory Memorandum and the parliamentary debates on the Victorian legislation in Hansard do not cast any light on the reasons for Victoria's adoption of the terminology, which significantly diverged from the form recommended or contemplated by the relevant law reform committees.

150. Hansard reveals that a generally cautious attitude was expressed in the parliamentary debates[37]. Several legislators recognised the new will-making power to be a "radical step", conferring a jurisdiction which should be exercised with "the utmost care" and perhaps, rarely used. Legislators considered that the legitimate purposes of the amendment included:

(a) Giving effect to a person's known intentions when dementia would otherwise prevent a response to unforeseen circumstances; and

(b) reduction of the evidentiary problems which arose after a testator's death in challenges to wills based on lack of testamentary capacity, by permitting testamentary capacity to be determined during the testator's lifetime.

Victorian decisions

156. Judges of this Court have considered the statutory will-making provisions in several recent cases which were relied on in the course of argument.

159. In Monger v. Taylor[38] Gillard, J. authorised the making of a statutory will on behalf of an elderly widow in circumstances where the disputing parties had compromised their differences and had made, for all practical purposes, a joint application pursuant to s. 26 of the Act.

162. The proposed will provided for a distribution of the estate to the testatrix's estranged sister and a nephew by marriage, who had assisted the testatrix. His Honour took into account that competent solicitors would have advised the testatrix that her sister's poor circumstances, coupled with her own failure to discharge her obligations as executrix of their late mother's will, required her to make some provision for her sister pursuant to Part IV of the Administration and Probate Act. In that context he adopted and applied the propositions of Megarry, V.-C. in Re D.(J.)[39] that the will should be made for an actual patient, acting reasonably, notionally restored to full mental capacity and advised by competent solicitors during the hypothetical lucid interval.

165. Gillard, J. stated that "much of what Sir Robert Megarry, V.-C. said applies to an application for leave to make the application"[40] but emphasised the centrality of the testator's "likely intentions" to applications under the Act.

168. In Hill v. Hill[41] Byrne, J. authorised the making of a statutory will for a testatrix who had lost testamentary capacity. The testatrix's existing will gave her estate to be divided equally between her daughter (an only child) and the Cat Protection Society. Although the estate was modest, the testatrix had devised only a half share to her daughter, due to their strained relationship. However, there was "compelling evidence" from the daughter and from independent witnesses that the testatrix, prior to losing testamentary capacity, had decided to leave her entire estate to her daughter, whose illness and needs she had only recently recognised.

171. In Re Fletcher; Ex parte Papaleo[42] Byrne, J. refused the application of the administrator of a widow who lacked testamentary capacity for leave to apply for an order authorising the making of a proposed will.

174. His Honour referred to the propositions enunciated by Megarry, V.-C.[43] in Re D. (J.)[44] but noted that the United Kingdom legislation did not contain a provision comparable to s.26(b). Rather, the United Kingdom statutory will-making power was merely one aspect of the court's wide powers to deal with the property and affairs of a patient under its protection jurisdiction.

"Nevertheless, the solution in this State must be informed by the statute which I must interpret and apply to discover "the likely intentions of the person, if he or she had testamentary capacity" and then to authorise the making of a will which reflects and gives effect to these intentions. This statutory emphasis on the likely intentions of the will-maker is to be contrasted with the terminology of the United Kingdom statute which directs the inquiry as to the "persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered" ...This means that the English courts have been ready to suppose a hypothetical set of circumstances in which the will-maker is presumed to find themself with testamentary capacity, and then to fashion a disposition of their assets which the court considers the will-maker might reasonably choose in these circumstances."

181. In Fletcher[46], the only evidence from which the alleged "likely intentions" of the testatrix could be inferred was the equality of dispositions to her children in her existing will. Byrne, J. could not be satisfied that a proposed will deducting the value of benefits already received by one child reflected the testatrix's likely intentions.

"Experience shows that people of sound mind do not alter their will even when subsequent events occur which change the effect of the existing testament. It is a serious step to make or to modify a will. It is not for me to impose upon [the mother] an intention which I think she might or ought to have."

188. In State Trustees Ltd. v. Hayden[48] Mandie, J. exercised the power under s.21 of the Act in order to authorise the making of a statutory will for an elderly widow by, inter alia, revoking those provisions of the widow's existing will which conferred substantial benefits on the defendant, who was guilty of reprehensible conduct in the management of her affairs.

191. Mandie, J. considered that much of what was said by Megarry, V.-C. in Re D. (J.)[49] could usefully be applied in considering the questions of leave under s.26 of the Wills Act, but stated[50]:

"However, the express requirement in s.26(b) of satisfaction that the proposed will or revocation `accurately reflects the likely intentions of the person, if he or she had testamentary capacity' must at all times be borne in mind."

"In order to meet the requirements of s.26(b) of the Wills Act 1997, the Court must be satisfied on the balance of probabilities that the proposed will or revocation accurately reflects the "likely" intentions of the person. The use of the word "accurately" indicates the need for the proposed will to reproduce the person's intentions with a substantial degree of precision and exactitude. Nevertheless, it is the "likely" intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person from time to time in the past - but that is not to say, in a given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result."

199. His Honour applied the principle expressed in Re C. (a patient)[52] where Hoffman, J. held under the Mental Health Act (U.K.) 1983 that where a person's prolonged and severe mental disability precluded any evidence of her actual intentions, the court must assume that she "would have been a normal decent person" as, in the absence of evidence to the contrary, "no less should be assumed of any person".[53]

202. The above discussion sets out the legislation and the existing state of the authorities, in order to provide the context in which the learned trial judge determined the appellant's application. It does not follow that this Court accepts any existing construction of the provisions of Part 3 Division 2 of the Act or articulation of relevant principles, which remain matters for determination by this Court. The extent to which the above authorities may be treated as providing future guidance on Part 3 Division 2 of the Act must be subject to the discussion of the legislation and of the issues on appeal, which is set out below. In particular, for reasons which appear below, it does not follow that a general application of the principles expressed in In Re D. (J.)[54] and in Re C. (a patient)[55] is compatible with this Court's analysis of the legislation. The crucial differences between the Victorian and United Kingdom legislation, already recognised in the Victorian decisions, dictate a cautious approach to principles derived from the English cases.

206. The principal facts giving rise to Ms Boulton's application as plaintiff in the proceeding below were undisputed. The evidence at trial was by way of affidavit. There was no cross-examination of the deponents.

209. Ms Sanders was born in 1914. She never married and had no children. She was a school teacher by profession, who retired in 1974 from full-time employment at the age of 60. On retiring from teaching she continued to work as a part-time librarian in Coltmans, a firm of solicitors.

212. Ms Sanders resided for most of her life at 21 Florence Avenue, Kew (the "Florence Avenue property"). The Florence Avenue property was Ms Sanders' parents' family home. Upon her mother's death in 1947, Ms Sanders acquired title to the Florence Avenue property from her mother's estate upon a payment of £618 . The Florence Avenue property was then valued at £900. The difference between the value of the property and Ms Sanders' payment represented Ms Sanders' entitlement as one of the heirs on her mother's intestacy.

215. From 1960 to 1982, Ms Sanders' friend, Ms Patricia Kennedy (a solicitor and a partner at Coltmans) resided with her at the Florence Avenue property. In about 1970, Ms Sanders' friend, Ms Ruth Coulsell, having retired from her position as a school inspector, joined Ms Sanders and Ms Kennedy in residence at the Florence Avenue property. Following Ms Kennedy's departure in 1982, Ms Sanders and Ms Coulsell continued to reside together at the Florence Avenue property until Ms Sanders sold it in 1996. She then purchased a residential unit situated at 290 Cotham Road, Kew, which the companions shared until Ms Coulsell's death on 14 July 2000.

218. Ms Coulsell was Ms Sanders' principal companion and friend, on whom Ms Sanders also relied heavily for household management, shopping, driving and other assistance and support.

221. Ms Sanders was one of six children, of whom only herself and her two brothers, Alan and Keith, survived infancy. Both Alan Sanders and Keith Sanders married and had children. Alan Sanders and Keith Sanders are now deceased. Their surviving children are now adults. As Ms Sanders' nieces and nephews, they are her closest relations and her heirs on intestacy.

(i) Roger Sanders

(ii) Peter Sanders

(iii) Janet Ruth Sanders (now Austin)

230. The surviving children of Keith Sanders by his first marriage are:

(i) Judith (Rebecca) Ling

(ii) Margaret Ruth Sanders (O'Donnell)

236. The surviving children of Keith Sanders by his second marriage are:

(i) Robyn Cornell (Sanders)

(ii) Gary Sanders

(iii) Patricia Sanders (or Griechen)

(iv) Linda Ross (Sanders)

242. The first respondent, Roger Sanders, (the first-named defendant) and the fourth respondent, Judith (Rebecca) Ling (the fifth-named defendant) supported the appellant's application below.

245. The sixth, seventh, eighth and ninth respondents are the children of Keith Sanders' second marriage, who were joined as defendants by the order of Master Wheeler made 25 February 2003.

248. Another niece of Ms Sanders, Barbara Joy Chapman (the third defendant) died on 9 May 2002 and is not a respondent to this appeal.

251. Ms Sanders' level of contact with her individual nieces and nephews varied considerably. In the case of some nieces and nephews (including the children of Keith Sanders' second marriage) there was little or no contact. In the case of other nieces and nephews, the level of contact varied both according to the individual and over the course of time. There was also contact between Ms Sanders and some of her great nieces and nephews.

254. The appellant is the daughter of an old friend of Ms Sanders and has known Ms Sanders all her life. According to the appellant, Ms Sanders regarded her as "like a daughter [she] never had" and treated her as such. Ms Boulton maintained consistent frequent personal and social contact with Ms Sanders. Ms Boulton's father, and subsequently her husband, provided advice in financial matters to Ms Sanders and undertook some household repairs and maintenance for her. Ms Boulton also provided assistance and advice, particularly when Ms Sanders sold the Florence Avenue property.

258. Ms Sanders executed wills in 1989, 1994 and 1996.

261. Under the 1989 will Ms Coulsell received a specific bequest of furniture and personal articles. Ms Sanders' niece Janet Austin, The Anglican Mission to the Streets and Lanes, the Association for the Blind and the Mission of St. James and St. John received specific bequests of $2,000. Her niece Judith (Rebecca) Ling[56] and her great-nieces Alice Ling, Phoebe Ling, Susanna Ling and Heather Onions, received specific bequests of $5,000. Ms Boulton received a specific bequest of $10,000. Ms Coulsell received the residuary estate and in the event that Ms Coulsell predeceased the testatrix, there was a gift over of the residuary estate in equal shares to the following beneficiaries:

Judith (Rebecca) Ling; Alice Ling, Phoebe Ling, Susanna Ling; Janet Austin; Ms Boulton; The Anglican Mission to the Streets and Lanes; The Association for the Blind; The Mission of St. James and St. John; and The Prahran Parish Mission.

265. Under the 1994 will Ms Sanders' nieces Judith (Rebecca) Ling and Barbara Chapman, her great nieces Alice Ling, Phoebe Ling and Susanna Ling, her great nephew Julian Sanders, the Association for the Blind, the Fitzroy Community Youth Centre and the Cat Protection Society received specific bequests of $5,000. Her nephews Roger Sanders and Peter Sanders, her niece Janet Austin, Ms Boulton, The Anglican Mission to the Streets and Lanes, the Mission of St. James and St. John and The Smith Family received specific bequests of $10,000. Ms Coulsell receive the residuary estate and in the event that Ms Coulsell predeceased the testatrix, there was a gift over of the residuary estate in equal shares to the following beneficiaries:

Judith (Rebecca) Ling; Peter Sanders; Roger Sanders; Barbara Chapman; Janet Austin; Ms Boulton; The Anglican Mission to the Streets and Lanes; The Mission of St. James and St. John; The Smith Family; and The Fitzroy Community Youth Centre.

269. Under the 1996 will Ms Boulton received no benefits. Ms Sanders' nieces Judith (Rebecca) Ling and Barbara Chapman, her great nieces Alice Ling, Phoebe Ling and Susanna Ling, her great nephew Julian Sanders, the Association for the Blind, the Fitzroy Community Youth Centre and the Cat Protection Society received specific bequests of $5,000. Her nephews Roger Sanders and Peter Sanders, her niece Janet Austin, The Anglican Mission to the Streets and Lanes, the Mission of St. James and St. John and The Smith Family received specific bequests of $10,000. Ms Coulsell received the residuary estate and in the event that Ms Coulsell predeceased the testatrix, there was a gift over of the residuary estate in equal shares to the following beneficiaries:

Roger Sanders; Barbara Chapman; Janet Austin; The Anglican Mission to the Streets and Lanes; The Mission of St. James and St. John; The Smith Family; The Fitzroy Community Youth Centre.

276. Ms Sanders executed a further will on 15 October 1997 ("the 1997 will"). Her testamentary capacity at that date is not disputed. The 1997 will was witnessed by Ms Kennedy and another witness whose full name is indecipherable but whose address of Flat 1, 290 Cotham Road, indicates that the person was a neighbour occupying a unit adjoining that of Ms Sanders.

279. At the date of the 1997 will Ms Coulsell was still living. By the 1997 will Ms Sanders appointed Ms Coulsell her executor. She also made Ms Coulsell a specific bequest of $10,000, and her residence at Unit 5, 290 Cotham Road, Kew; "together with the furniture, furnishings, pictures and books therein, other than any items, otherwise specifically bequeathed in this my will."

282. The 1997 will then made the following specific bequests:

1. Ms Coulsell $10,000 and Ms Sanders' property at Unit 5, 290 Cotham Road Kew together with the furniture, pictures and books.

6. Alice Ling, Phoebe Ling and Susanne Ling $10,000 each.

298. By clause 4 Ms Sanders left her residuary estate to Ms Coulsell. There was no gift over of the residuary estate, so that if Ms Coulsell predeceased Ms Sanders the residuary estate would be distributed according to the laws of intestacy.

301. Although there was no disposition of the residuary estate other than to Ms Coulsell, clause 5 of the 1997 will was an accruer clause, which assumed multiple residuary beneficiaries.

"5. I DECLARE that if the trusts herein declared of any part or parts of my residuary estate shall fail or lapse then such part (together with any part or parts which may accrue thereto under the present provision) shall accrue to the other parts of my residuary estate the trusts whereof shall not at the date of such accruer have failed in the proportions such other parts bear to each other".

308. A draft of the 1997 will in Ms Sanders' handwriting exists. The handwritten draft differs in some trifling respects from the 1997 will[57] but is otherwise identical, save that seven lines of clause 4 included in the 1997 will are not present in the handwritten draft. That is, there is no gift of the residuary estate in the draft. .

311. Ms Sanders' friend Ms Kennedy held a practising certificate until 2001 although she had retired from Coltmans in 1994. Ms Kennedy's former secretary, Ms Jones, deposed to a belief that she typed the 1997 will on instructions from Ms Kennedy. Ms Kennedy was one of the witnesses to the 1997 will.

314. Ms Coulsell died on 14 July 2000. The appellant deposed that following Ms Coulsell's death she became the "prime carer" for Ms Sanders whose health and capacities were deteriorating.

317. On 27 October 2000, the Victorian Civil and Administrative Tribunal ("V.C.A.T."), being satisfied of Ms Sanders' disability and her inability to make reasonable judgments in respect of her estate, appointed Ms Boulton the administrator of Ms Sanders' estate. The Public Advocate was appointed her limited guardian. It is not disputed that from October 2000, Ms Sanders has lacked testamentary capacity.

320. In her capacity as administrator, Ms Boulton arranged for Ms Sanders' unit in Cotham Road, Kew to be sold. Ms Boulton also re-organised Ms Sanders' investments. She was remunerated for her services as administrator. Ms Boulton filed accounts which showed that Ms Sanders' assets as at 27 July 2002 comprised investments totalling $969,057.91 in value.

323. Ms Boulton subsequently formed the view that Ms Sanders required admission to residence in a special accommodation facility. She selected a facility known as Ascot Manor in Ashburton to which Ms Sanders was admitted on 11 February 2001.

326. On 16 January 2003, Ms Boulton filed and served an originating motion seeking leave to apply for an order pursuant to s.26 of the Act that a proposed will be authorised for Ms Sanders. On 4 March 2003, an amended originating motion was filed.

330. The proposed will makes the following specific bequests:

5. Alice Ling, Phoebe Ling and Susanne Ling $10,000 each.

345. It provides that the residuary estate is to be divided into eight (8) equal shares and distributed as follows:

7. The Peter MacCallum Cancer Institute one (1) share.

355. Although Ms Boulton was Ms Sanders' administrator at the dates of the originating and amended originating motions, it is not contended that she made the application for leave in her capacity as administrator.

358. On 27 March 2003 V.C.A.T. appointed State Trustees as administrator of Ms Sanders' estate, in place of Ms Boulton. This Court was informed that Ms Boulton voluntarily relinquished her position as administrator, in recognition of the conflict of interest which had arisen due to the application for leave under s.26 of the Act.

362. The learned trial judge observed that it was "necessary to examine the question of whether the failure to include a gift over of residue in the 1997 will was deliberate or accidental"[58].

365. From the fact that the 1997 will appeared to have been drafted by someone with legal knowledge, Ms Kennedy's role as a witness, and the matters deposed to by her former secretary, the learned trial judge concluded that it could be inferred that the 1997 will was prepared by Ms Kennedy. Ms Kennedy did not give evidence at trial. This Court was informed that she is currently incapable of giving evidence.

368. The learned trial judge apparently inferred that Ms Sanders' attention was drawn to the omission of the gift of the residuary estate in her handwritten draft, and that in consequence the omission was rectified in the 1997 will.

"One would expect that Ms Kennedy would have advised Miss Sanders to include in the will a gift over of her residuary estate in the event of Ms Coulsell's predeceasing her. However, even if such advice were given, it is well known that clients do not always take the advice of their solicitors. There is no evidence from which I could infer that the absence of a gift over of residue was accidental."[59]

375. She noted that the 1997 will contained an accruer clause which had no application to a will where there was only one residuary beneficiary. Her Honour concluded that either the inclusion of the accruer clause or the omission of a gift over was a mistake. She "inclined to view" that a testator would probably pay more attention to the details of the beneficiaries than to general provisions such as the accruer clause and stated:

"Therefore if there was a mistake, it seems to me to be more likely that the mistake was the inclusion of the accruer clause"[60].

379. The learned trial judge considered that there was no evidence from which she could infer that the omission of a gift over was accidental. She recognised that it was "entirely possible"[61] that Ms Sanders preferred to allow the residue of her estate to be distributed according to the laws of intestacy if Ms Coulsell predeceased her.

382. The trial judge also recognised that some of Ms Sanders' estate could be regarded as having come from her family, so that the intestacy which would benefit her nieces and nephews may have been regarded as "appropriate".[62] She observed that "there was nothing inherently unreasonable about that disposition which would lead to the conclusion that Ms Sanders could not possibly have intended it"[63].

385. Her Honour was not satisfied on the balance of the probabilities that the proposed will accurately reflected the testatrix's likely intentions and dismissed the application for leave under s.21 of the Act.

389. The Notice of Appeal asserts that the learned trial judge misdirected herself by examining the question whether the failure to include the gift over was deliberate or accidental. The appellant submits that the trial judge should instead have asked whether after Ms Coulsell's death the testatrix would have wished to make a new will disposing of the residuary estate. The appellant contends that given the pattern of previous wills and the absence of change in circumstances, the trial judge should have concluded that Ms Sanders would not wish her estate to pass on intestacy but rather , would have wished to make a new will.

392. The Notice of Appeal also asserts that the learned trial judge erred in finding that there was no evidence from which to infer that the omission of a gift over of the residuary estate was accidental.

395. The Notice of Appeal further states that Her Honour erred in finding that she could not be satisfied on the balance of probabilities that the proposed will reflected Ms Sanders' likely intentions. The Notice of Appeal does not state the basis for that asserted error.

398. The appellant's outline of argument asserts that in the present case the essential question of whether the proposed will reflects "likely intentions" resolves itself into two necessary questions:

"(a) whether or not [Ms Sanders] would have wished, after the death of Ruth, to make a new will (or codicil) providing for the disposition of the residue of her estate, or whether she would have been content with the result of the 1997 will, that is, for the residue to pass as on an intestacy to her nieces and nephews equally, pursuant to section 52 of the Administration and Probate Act 1958 ("the first question"); and (b) if the answer to the first question is that [Ms Sanders] would have wished to make a new will or codicil in those circumstances, then what would the likely terms of such will (or codicil) have been ("the second question")".

402. In oral submissions Mr Lucarelli, senior counsel for the appellant, contended that the trial judge erred in deciding that the omission of the gift over was deliberate, which led her to accept that the testatrix intended to dispose of her residuary estate by the laws of intestacy. Mr Lucarelli submitted that the trial judge compounded that initial error by casting on the appellant the unduly high burden of disproving that the testator's choice of intestacy was permanent. He contended that the trial judge had misapplied Byrne, J.'s caveat that a will should not be lightly modified which (although appropriate in the context of an application which would disinherit named beneficiaries) was inappropriate in the present case, where the proposed will would avoid an intestacy.

405. Mr Lucarelli argued that the evidence did not support the conclusion that the omission of a gift over was deliberate. He relied, in this context, on the inclusion of a gift over in the previous wills, the absence of any evidence of change in Ms Sanders' relationship with her nieces and nephews and the absence of any evidence of potential claims under Part IV of the Administration and Probate Act. Alternatively, he submitted that the trial judge failed to consider that even a deliberate omission of the gift over of the residuary estate from the 1997 will (which he contended she found) did not establish a permanent preference for intestacy. Rather, he argued that it could simply mean that Ms Sanders intended to reconsider the disposition of her residuary estate if and when Ms Coulsell predeceased her.

408. The appellant also contended that the trial judge erred in concluding that the 1997 will was prepared by Ms Kennedy. There is no direct evidence of the circumstances of the preparation and execution of the 1997 will. Ms Sanders had executed at least three earlier wills which may have served as precedents to enable her to draft the 1997 will. However, the previous wills did not provide a precedent for the term qualifying the specific bequest of furniture to Ms Coulsell, which did not appear in those terms in any of the earlier wills. The drafting of the qualifying term, which appeared in both the handwritten draft and the 1997 will, would appear to require legal knowledge.

411. The learned trial judge was entitled to draw the inference that the 1997 will was prepared by Ms Kennedy. Although Ms Sanders may have been able to draft much of the 1997 will herself by using her previous wills as precedents, the overwhelming inference is that Ms Kennedy had significant input. Even at the draft stage, Ms Sanders would almost certainly have required professional assistance to draft the qualification to the unprecedented specific bequest of her residence and furniture to Ms Coulsell included in the handwritten draft. Further, the 1997 will includes a gift of the residuary estate, which was omitted from the handwritten draft. As the trial judge observed, Ms Kennedy also witnessed the 1997 will. The inference that she prepared it is fortified by the evidence of Ms Jones.

414. Mr Lucarelli contended that a "distinct pattern" could be discerned in Ms Sanders' wills, from which her likely intentions at the date of the leave application could be ascertained. First, the three previous wills always included a gift over of the residuary estate, indicating her intention to avoid intestacy. Secondly, the treatment of charities and individuals in all four wills indicated Ms Sanders' likely intentions for the identity of her residuary beneficiaries, which were reflected in the proposed will.

417. He contended that the trial judge's reasoning had "raised the bar" so high against the possibility that the testatrix may have intended to make another will that the judge ignored other reasonable possibilities and never considered the crucial question whether the proposed will accurately reflected Ms Sanders' likely intentions. Thus it was said that the judgment was truncated by a premature and ill-founded conclusion that Ms Sanders deliberately omitted a gift over in the 1997 will because she intended the laws of intestacy to operate if Ms Coulsell predeceased her.

420. The appellant's division of the single question posed by s.26(b) into two questions proceeds on an unarticulated premise that, provided the court be satisfied that the testatrix would not have intended intestacy, it must ascertain the likely terms of the will that she would have wished to make. Section 26(b) does not impose that task on the court. The detection of the testator's likely intentions would, of course, enable the court to determine either positively or negatively the question whether the proposed will accurately reflects them. However, that question can only be determined negatively in cases where, due to insufficient evidence, the likely intentions of the testator cannot be ascertained on the balance of probabilities. The appellant's articulation of the two questions is misleading in so far as it suggests that the court must authorise a will in the absence of satisfactory evidence of the likely intentions of the testator if it is established that intestacy was not intended.

423. In cases where the evidence does not permit the court to form any view of the testator's likely intentions, it is neither empowered nor required to "do the best it can" to authorise a proposed will, even where the alternative is an intestacy which the testator probably did not intend.

426. Under the United Kingdom legislation, regard may properly be had to many factors (including legal or non-legal obligations) from which a will may be constructed, albeit for an actual person on whom such factors or obligations are taken to impinge. As Hoffman, J. observed in Re C. (a patient)[64], under the United Kingdom legislation if a disposition is consistent with the guiding principles "it is not necessary for the court to be satisfied that the patient would definitely have chosen one way of giving effect to them rather than another"[65]. His Lordship recognised that a provision which the patient "might be expected to provide" allowed for, in matters of detail, "a range of choices which would be equally valid".[66] Under the Victorian legislation, the legislative insistence on an accurate reflection of the likely intentions of the testator precludes the authorisation of a will which no more probably reflects likely intentions than any number of other possible wills, although it may accord with an assumed desire to avoid intestacy.

429. While not excluding flexibility in matters of "detail", s.26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator's likely intentions. The question is not whether the testator would probably have preferred the proposed will to intestacy; nor whether the proposed will is one of a number of possible proposed wills, all of which might be equally likely to reflect the testator's likely intentions. If the proposed will no more probably reflects "likely intentions" than a number of other possible dispositions, in my view the requirements of s. 26(b) will not be satisfied.

432. Section 26(b) does not demand certainty, but probability. However, as Mandie, J.[67] recognised, the requirement of accurate reflection demands a substantial degree of precision and exactitude about the "likely intentions".

435. In the present case the appellant complains that, contrary to the evidence, the trial judge found that Ms Sanders deliberately chose an intestacy of her residuary estate in the 1997 will and proceeded on the basis that it remained her likely intention for the disposition of her estate. It is said that that unjustified assumption deflected her Honour from considering whether the proposed will reflected the testator's likely intentions.

438. The appellant contends that had the trial judge proceeded to consider the question, she would have concluded that the proposed will accurately reflected Ms Sanders' likely intentions.

441. Although there is no subjective evidence of Ms Sanders' intentions the appellant argues that they can be inferred from:

(a) the history of Ms Sanders' family relationships and friendships;

(b) a pattern said to emerge from her wills.

447. Ms Sparke, counsel for the fifth to ninth respondents, argued that the trial judge did not find that Ms Sanders deliberately omitted a gift over of the residuary estate (and thus did not conclude that intestacy was her enduring likely intention).Rather, Ms Sparke submitted that the learned trial judge, while inclined to the view that the choice of intestacy was more likely than otherwise, did not make any finding to that effect. It was said that Her Honour's observations simply registered recognition that accidental intestacy was no more likely, and indeed less likely, than an intention that the laws of intestacy should apply. She made no finding either way.

450. The tenor of Her Honour's observations may lend some support to the view that she considered that the omission of the gift over was deliberate and reflected a preference for intestacy, as the appellant contends. However, the relevant evidence was limited and equivocal. It did not justify a conclusion on the issue. While it is probable, in my opinion, that the learned trial judge's comments simply reflected her conclusion that the proposed will did not satisfy the requirements of s.26(b) because it was no more likely to reflect Ms Sanders' probable intentions than intestacy, it is unnecessary to determine that issue. The question whether the omission of a gift over of the residuary estate and the consequent possible intestacy were deliberate or accidental is irrelevant to the test under s.26(b) of the Act.

453. The appellant also contends that the trial judge erred in failing to recognise that even a deliberate omission of a gift over in the 1997 will would not establish that Ms Sanders permanently intended an intestacy of the residuary estate. That argument must fail if the trial judge made no finding of deliberate omission. In any event, it disregards the fact that once it be accepted that Ms Sanders intended the laws of intestacy to operate in the event that Ms Coulsell predeceased her, the intestacy provisions are, in effect, incorporated by reference into the 1997 will and are as much a deliberate testamentary disposition as its other provisions.

456. Viewed in that light, there was no unforeseen event or other evidence from which to conclude that Ms Sanders had subsequently changed her mind. The appellant's reliance on previous wills is question-begging as the execution of a new will denotes a deliberate intention to alter at least some existing dispositions.

459. The appellant also asserts that the trial judge did not consider argument on the pattern said to emerge from the wills. The learned trial judge expressly considered the alleged pattern, but principally in relation to the question whether intestacy was intended. She did not expressly consider whether the alleged pattern was sufficiently consistent to ascertain the testatrix's likely intentions about her residuary beneficiaries and the size of their respective shares. However, the learned trial judge appeared implicitly to recognise the appellant's full argument about the pattern of previous wills, although she did not consider all elements separately or expressly.

462. In my view the learned trial judge posed the correct question. She considered the relevant circumstances "in globo" and ultimately was not satisfied that the terms of the proposed will accurately reflected likely intentions more probably than other possible dispositions, including intestacy.

465. In my opinion her conclusion was justified. The only evidence to support the contention that the proposed will accurately reflects the testatrix's likely intentions was:

(a) The evidence of Ms Sanders' relationship with her various nieces and nephews and Ms Boulton.

(b) The wills of Ms Sanders and the pattern they allegedly disclose.

472. Upon the death of Ms Coulsell, Ms Sanders had no obvious close relationship and no obvious principal beneficiary. There was no person to whom she owed any significant obligation, legal or non-legal, or for whom she had any responsibility to provide. Neither Ms Boulton nor any other party adduced any evidence of financial circumstances or need. In her 1997 will Ms Sanders recognised a number of charities and people (including nieces, nephews and helpful friends) who each received a pecuniary legacy which, although relatively modest, exceeded any demonstrated claim to recognition or reward which the legatee could reasonably have asserted[68].

475. Ms Sanders had an established relationship with only some of her nieces, nephews, great-nieces and great-nephews. In no case could it be described as very close.

478. The history of family relationships and Ms Sanders' relationship with Ms Boulton is thin and does not, either in itself or in combination with the previous wills (discussed below) support the conclusion that the terms of the proposed will probably reflect the testatrix's likely intentions.

481. The appellant contends that a compelling predictive pattern emerges from the wills. In my opinion, that conclusion is not borne out. There is, as the appellant contends, a consistent avoidance of intestacy in the three previous wills. That pattern, however, was broken by the 1997 will. Whether the previous wills are a valid indicator of the testatrix's intentions on that issue begs the question whether the omission of the gift over was accidental or deliberate.

484. The other important aspect of the pattern is that in each of the three previous wills, the beneficiaries of the gift over of the residuary estate (with only one exception) comprised a sub-set of the specific legatees in that will. Therefore, Mr Lucarelli contends that if (as he asserts) the omission of a gift over from the 1997 will were accidental, a disposition of the residuary estate to a sub-set of specific legatees would reflect the likely intentions of the testator. The proposed will retains the specific legatees of the 1997 will. It gives the residuary estate to a sub-set of those specific legatees comprising five of the ten individual specific legatees, (two nieces, two nephews and Ms Boulton) and two of the four charities, Anglicare (which receives a double share) and the Peter MacCallum Cancer Institute. The appellant contends that the selection of the residuary beneficiaries is dictated by the pattern of their treatment in the previous wills.

487. Ms Sanders' three known previous wills and the 1997 will each contain a number of specific bequests. In each case, the composition of the set of specific legatees differed. Excluding Ms Coulsell (who received a specific legacy in the 1989 will and the 1997 will) the number of specific legatees ranged from ten in the 1989 will up to 16 in the 1994 will. Only five individuals (nieces Judith (Rebecca) Ling and Janet Austin and great-nieces Alice, Phoebe and Susanna Ling) received a specific legacy in all four wills. Only two charities, an Anglican charity[69] and the Association for the Blind, received a specific legacy in all four wills.

490. Some specific legatees are included in only one of the four wills (Heather Onions, David Vince, Peter Hall and The Peter MacCallum Cancer Institute). Some are included in only two of the four wills (Julian Sanders, The Smith Family, Fitzroy Community Youth Centre and Barbara Chapman, now deceased). Some are included in three wills (Roger Sanders, Peter Sanders, Elaine Boulton, and the Cat Protection Society).

493. The beneficiaries of the gift over of the residuary estate also varied from will to will. In the 1989 will, six individuals and four charities shared the gift over of the residuary estate. One of the charities (the Prahran City Mission) did not receive a specific legacy. In the 1994 will, six individuals and four charities took a gift over of the residuary estate. Only three of those individuals and two of the charities had shared a gift over of the residuary beneficiaries in the 1989 will. In the 1996 will, five individuals (all nieces and nephews) and four charities took a gift over of the residuary estate. All five individuals had also received a gift over of the residuary estate in the 1994 will. Three of the four charities had received a gift over of the residuary estate in the 1994 will. Ms Boulton (who had received both a legacy and a share of the gift over of the residuary estate in the 1994 will) was omitted entirely from the 1996 will.

496. In the 1997 will (excluding Ms Coulsell) there are fourteen specific legatees (two nieces and two nephews, three great-nieces, three friends (including Ms Boulton) and four charities but there is no gift over of the residuary estate.

499. Some individuals and charities are included more consistently than others in Ms Sanders' wills. However, there is a significant degree of change and revision. Individuals and charities are included in, eliminated from or differently treated in the successive wills in accordance with the testatrix's prevailing preference at the time. For reasons which are unexplained, Ms Boulton was entirely excluded from the 1996 will at a date when Ms Sanders' testamentary capacity is not in question. No obvious pattern dictates her inclusion as a residuary beneficiary in preference to Ms Sanders' three great nieces or the Association for the Blind, who were never omitted from any will and were, in one case, recipients of a share of residuary estate. Similarly, The Smith Family received a specific legacy and a share of the residuary estate in both the 1994 and 1996 wills. The Association for the Blind received a legacy in the 1989, 1994, 1996 and 1997 wills and a share of the residuary estate only in 1989.

502. Ms Sanders made a new will relatively frequently and often changed her mind. Given the degree of change between the various wills, I am not persuaded that there is any compelling pattern which establishes, on the balance of probabilities, that the proposed will accurately reflects Ms Sanders' likely intentions.[70]

506. The appellant also appeals against the order that the appellant pay the defendants' costs of the proceeding below on a party and party basis. Before the learned trial judge, the appellant submitted that the costs of the proceeding should be paid out of Ms Sanders' estate because: (a) the payment of costs from the estate would not adversely affect Ms Sanders' lifestyle; (b) Ms Boulton was not the only person who would have benefited had the application been successful; and, (c) the jurisdiction involved a public benefit and its invocation should not be discouraged by imposing liability for costs on the appellant. Ms Sparke, counsel for the sixth to tenth defendants, contended that costs in this case should follow the event, although she conceded that the costs of an application by an independent administrator would properly be paid from the estate.

509. The learned trial judge endorsed the approach of Byrne, J. in Hill v. Hill[71] where he considered that the appropriate approach to costs in a proceeding under Part 3, Division 2 of the Act was "the ordinary rule for contentious litigation, namely that costs follow the event."

512. Her Honour also adopted Byrne, J.'s observation that:

"...in a case such as the present, the will-maker is still alive and entitled, so long as she lives, to enjoy her assets undiminished by the burden of paying the costs of those whose claims anticipate her demise.[72]"

516. She concluded that in all the circumstances of the case, it was appropriate to apply the ordinary principle that costs follow the event on a party and party basis.

519. Roger Sanders (the first defendant below and the first respondent) and Judith (Rebecca) Ling (the fifth defendant below and the fourth respondent) supported the appellant's application below. They stood to gain a slightly increased share under the proposed will, compared to the share which they would receive on intestacy. On appeal, Mr Lucarelli argued that in such circumstances, it was "perverse" to order that the appellant pay their costs.

522. The appellant also submitted that notwithstanding the dismissal of the proceeding, her Honour should have ordered that the costs of all parties to the proceeding be taxed on a solicitor client basis and paid out of Ms Sanders' estate.

525. The appellant argued that the jurisdiction exercised pursuant to s.21 of the Act is of a similar nature to the jurisdiction exercised in the United Kingdom under the Mental Health Act. Mr Lucarelli submitted that the principles governing the award of costs under that legislation were applicable to proceedings pursuant to ss.21 and 26 of the Act.

528. The principles for which the appellant contended were recognised in In Re C.E.F.D[73]. That case involved an application by certain relatives for a settlement of a patient's property under the Mental Health Act 1983. The receiver (a relative of the patient who had no interest in the proposed settlement) and another relative (representing a class of persons potentially affected by it) were parties. The official solicitor appeared on behalf of the patient.

"Subject to the general overriding discretion of the court, I am of opinion that in the normal case it is proper to order taxation on a common fund basis of (a) the costs of successful applicants under the above-mentioned sections; (b) the costs of other interested parties properly appearing on the application. As to the costs of the Official Solicitor, since he is appearing for the patient, as his client, it is appropriate that his costs be provided for on a solicitor and own client basis. There remain the costs of the receiver (when not the applicant), if as sometimes happens, he is made a respondent qua receiver, i.e., not as a person beneficially interested. Normally a taxation on a common fund basis should adequately provide for his costs, but there may be cases, which I do not attempt to define, when a taxation on a trustee basis could be appropriate."

535. In In Re D. (J.)[75] Megarry, V.-C. upheld an appeal from the order of a Deputy Master granting a patient's principal carer a greater share of the estate in a statutory will. Prior to the appeal, the respondents (the patient's other children) had offered to settle for a sum which was less than the appellant received on appeal. The Vice Chancellor endorsed the view in In Re C.E.F.D.[76] that "in any fair case of dispute those concerned have a reasonable expectation of having their costs, on a common fund basis, paid out of the estate so far as the hearing at first instance is concerned...[77]" but considered that the costs of an appeal would rest on a different footing.

538. The appellant also relied upon Halsbury's commentary[78] on the determination of costs under the United Kingdom legislation. The commentary recognised that although a broad discretion was conferred on the court, the legislation was aimed at the benefit and protection of incapable persons. Those purposes excluded the usual principles applicable to the costs of a litigant who has failed in the litigation. The authors concluded that where an application is reasonable and really prompted by a desire to protect the property of an incapacitated person, the applicant should not bear the costs[79].

541. While acknowledging that the United Kingdom statutory will-making provisions are "far more wide-reaching" than the Victorian provisions Mr Lucarelli submitted that the principles of In Re D. (J.) [80] and In Re C.E.F.D.[81] should apply to proceedings under Part 3, Division 2 of the Act. That is, any "fair case of dispute" justified the payment of costs from the estate on a solicitor and client basis, irrespective of the outcome.

544. The English authorities on which the appellant relied (whatever their factual similarities to the present case) are clearly distinguishable on a number of bases. First, in each of those cases, the protected person was represented and his or her estate was a party. Secondly, in Re D.(J.)[82] the applicant was successful both at the initial hearing and on appeal.

547. In the present case the State Trustees, as administrator of Ms Sanders' estate, was neither joined as a party to the proceeding nor served with any material. This court was informed that State Trustees was notified of the application under s.26 of the Act but made it clear that it would not participate in the proceeding unless it were joined. By a letter dated 21 May 2003 State Trustees stated that it did not consent to itself or Ms Sanders being substituted as plaintiff in the proceedings and that it would not seek to have Ms Sanders joined as a defendant.

550. Neither the plaintiff nor any other party at any stage applied for an order that the State Trustees or Ms Sanders be joined as a party to the proceeding. Neither Ms Sanders nor State Trustees as administrator of her estate was represented at the hearing at first instance or on appeal.

553. The learned trial judge cannot be said to have erred in declining to make a costs order against Ms Sanders' estate when it was not a party to the proceeding. Further, Mr Lucarelli conceded that the appellant had not raised the submission opposing the appellant's payment of the first and fourth defendants' costs below.

556. Those considerations alone justify the dismissal of the appeal against the costs order of the learned trial judge.

559. However, given the potential importance of costs orders in applications under Part 3, Division 2 of the Act, a third and more general ground of distinction should be noted. The appellant's reliance on principles derived from the English cases is fundamentally ill-founded. The terms, context, purpose and nature of the United Kingdom and Victorian legislation are very different. Under the United Kingdom legislation, the statutory will-making power is but an aspect of a broad protection jurisdiction, which permits the curial drafting of a will on the basis of a wide range of factors informed by a fundamental goal of benefit to the patient and his or her family. In contrast, the Victorian statutory will-making power is not part of a broad protective jurisdiction. Further, it is constrained by the necessity that the proposed will accurately reflect "likely intentions".

562. Those fundamental differences render the routine application of principles derived from the English cases inappropriate to cases arising under Part 3, Division 2 of the Act.

565. Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is "a fair case of dispute".

568. In determining whether it is appropriate to exercise the discretion to order that the costs of an application under Part 3, Division 2 of the Act be paid from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person's long-term security and welfare will always be an important consideration.

571. On appeal, the Court inquired about State Trustees' attitude to the application for the payment of costs of the proceeding and the appeal from Ms Sanders' estate. By letter dated 6 May 2004 addressed to the Registrar of the Court of Appeal, Ms May, a senior solicitor of State Trustees forwarded her affidavit sworn on 6 May 2004 which relevantly stated:

"3. As at 5 May 2004 Miss Sanders has assets totalling $929,616.86. Now produced and shown to me and marked with the letters `SLM2' is a Asset and Liability Statement as at 5 May 2004.

4. I am advised by Messrs Stedman Cameron, solicitors for the Appellant that the Appellant seeks Orders that the costs of the application for a Statutory Will heard by Her Honour Justice Balmford and of this appeal be paid from Miss Sanders' funds. Miss Sanders has funds from which these costs can be paid and I believe that the payment of these costs would not adversely affect Miss Sanders' current lifestyle.

5. State Trustees makes no submissions regarding the appellant's application for the payment of costs from Miss Sanders' funds and will submit to whatever Order this Honourable Court deems appropriate."

577. The attitude of State Trustees at the hearing below and on appeal may appear surprising, given that the purpose of its appointment (for which it is remunerated) is the protection and management of Ms Sanders' assets. Its apparent passivity was, in the circumstances, disquieting.

581. In my opinion, the appeal should be dismissed.

[1] See Monger v. Taylor [2000] V.S.C. 304 at [13-18], per Gillard, J.

[2] The Mental Health Act 1983 (U.K.) s.91(1)(e).

[3] [1982] 1 Ch. 237.

[4] In Re D. (J.), [1982] 1 Ch. 237 at 243.

[6] [1982] 1 Ch. 237.

[7] [1991] 3 All E.R. 866.

[10] Chief Justice's Law Reform Committee, Wills for Mentally Disordered Persons, Report of Sub-Committee, Victoria, 10 October 1985.

[17] Parliament of Victoria Law Reform Committee, Reforming the Law of Wills: Report Upon an Inquiry into the 1991 Draft Wills Bill, No. 82, L.V. North, Government Printer, Melbourne, May 1994 at 34ff.

[33] Wills Bill 1997 (Second Reading), [Assembly, 9 October 1997].

[37] In the Second Reading Speech, Mr Cameron observed that the amendments related "to someone who has left very clear instructions while he or she was of sound mind ...". See: Wills Bill 1997 (Second Reading) [Assembly, 29 October 1997], at 812. Mr Furletti stated that: "The use of this provision may be rare, but it covers those circumstances where a person's known intentions will not be given effect to because of unforeseen circumstances or events...". See: Wills Bill 1997 (Second Reading) [Council, 20 November 1997], at 728. Mr Nardella stated: "Clause 21 deals with persons who do not have testamentary capacity, which is also appropriate. The relevant checks and balances are there; it is about judges retaining discretion in those circumstances.". See_:_ Wills Bill 1997 (Second Reading) [Council, 20 November 1997], at 724. Mr Katsambaris stated that the provision: "...is a radical step... It is difficult to say whether these radical new procedures will work... I imagine the Court will exercise the utmost care when authorising wills made under these provisions...". See: Wills Bill 1997 (Second Reading) [Council, 20 November 1997], at 731. See also Mr Thompson (Second Reading) [Assembly, 290 October 1997] at 818 and Mr Nardella (Second Reading) [Council, 20 November 1997) at 724.

[38] [2000] V.S.C. 304.

[39] [1982] 1 Ch. 237.

[40] [2000] V.S.C. 304at [67].

[41] Hill v. Hill & Cat Protection Society of Victoria [2001] V.S.C. 83.

[42] [2001] V.S.C. 109 at [18].

[43] [1982] 1 Ch. 237 at 243-244.

[44] [1982] 1 Ch. 237.

[45] Re Fletcher; Ex parte Papaleo, [2001] V.S.C. 109 at [20].

[47] Re Fletcher; Ex parte Papaleo, [2001] V.S.C. 109 at [22].

[48] [2002] V.S.C. 98.

[49] [1982] 1 Ch. 237.

[50] State Trustees Limited v. Hayden [2002] V.S.C. 98 at [36].

[52] [1991] 3 All E.R. 866.

[53] State Trustees Limited v. Hayden [2002] V.S.C. 98 at [40].

[54] [1982] 1 Ch. 237.

[55] [1991] 3 All E.R. 866.

[56] Judith (Rebecca) Ling also received a specific bequest of a piano in all the wills.

[57] For example, some amounts are written in the 1997 will, but figures only are used in the draft.

[58] Boulton v. Sanders & Ors, [2003] V.S.C. 405 at [11].

[60] Boulton v. Sanders & Ors, [2003] V.S.C. 405 at [11]- [12].

[64] [1991] 3 All E.R. 866.

[67] See State Trustees Ltd. v. Hayden , [2002] V.S.C. 98.

[68] Schmidt v. Watkins, [2002] V.S.C. 273, Harper, J.

[69] Initially two entities (The Anglican Mission to the Streets and Lanes and the Mission of St James and St John) which were apparently subsumed in a single entity "Anglicare" in the 1997 will and received a double share of the residuary estate in the proposed will.

[70] While the four nieces and nephews and an Anglican charity were all included in the three most recent wills, The Smith Family, the great nieces, the Cat Protection Society and the Association for the Blind were also regularly, if not identically, favoured by the testatrix. On the other hand, Ms Boulton was excluded from the 1996 will for unexplained reasons.

[71] [2001] V.S.C. 83.

[72] Boulton v. Sanders & Ors, [2003] V.S.C. 405 at [2].

[73] [1963] 1 W.L.R. 329.

[75] [1982] 1 Ch. 237.

[76] [1963] 1 W.L.R. 329.

[77] [1982] 1 Ch. 237 at 256.

[78] Halsbury's Statutes of England and Wales, 4th ed, vol. 28, Mental Health, at 785-786.

[80] [1982] 1 Ch. 237.

[81] [1963] 1 W.L.R. 329.

[82] [1982] 1 Ch. 237.