Burns v The Estate of Troy Mitchell Burns, a Protected Person

Judgment 1By Summons filed on 20 August 2013, Mrs Carol Burns (to whom I will refer, without disrespect, as "Mrs Burns") seeks leave to bring an application for an order authorising a will to be made, in terms approved by the Court, on behalf of her son, Mr Troy Burns (to whom I will refer, without disrespect, as "Troy"). She also seeks an order that the Registrar execute a will on behalf of Troy in a form annexed to her affidavit sworn 8 August 2013 ("the proposed will"), or in such other form as may be authorised by the Court. 2By way of background, Troy was born in 1971 and is about 42 years old and unmarried. He has one daughter, Aliesha Burns (now known as Aliesha Spiteri) (to whom I will refer, without disrespect, as "Aliesha") who was born in 1991. Troy's relationship with her mother, Ms Joanne Spiteri, ended after they had lived together for about a year, not later than about 1992, and Aliesha's mother then entered another relationship. Troy's other close relatives are Mrs Burns who is presently 73 years old and his brother Brett Burns (to whom I will refer, without disrespect, as "Brett") who was born in 1968 and is now nearly 45 years old. Troy's father died in 1991. Troy had not made a will, so Aliesha would presently be the sole beneficiary of his estate on his death intestate under s 127 of the Succession Act 2006 (NSW). 3Troy worked at a variety of jobs, including labouring, fencing and fitting out caravans and professional practices between 1986 and 2005. He was working in a distribution facility when he was severely injured in a motor vehicle accident in 2005, suffering multiple cerebral brain stem contusions. In her affidavit dated 8 August 2013, Mrs Burns sets out the nature of the injuries suffered by Troy after his motor vehicle accident. After being an inpatient in hospital for several weeks, he was transferred to a specialist recovery unit, and subsequently to care in a community home at Bella Vista, where Mrs Burns anticipates that he will remain for the rest of his life. Mrs Burns was appointed Troy's financial manager by the Guardianship Tribunal in 2005; Troy recovered a judgment in respect of his injuries suffered in the accident of $7.9 million, subject to adjustments, plus costs in June 2008; and Brett was appointed jointly as financial manager with Mrs Burns (who was then in poor health) in September 2009. Several other persons were given notice of the application. Troy's daughter Aliesha and his brother Brett were present in Court when the application was heard. Mrs Joanne Spiteri attended an earlier directions hearing before the Registrar but do not attend when the application was heard. The nature of the application 4This application is made under Part 2.2 Div 2 of the Succession Act. Section 18 of the Succession Act provides that the Court may, on application by any person, make an order authorising a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity. An order under that section may deal, relevantly, with the whole of that person's property and may only be made if the person in respect of whom the application is made is alive when the order is made; and the Court may give any necessary related orders or directions at the time of making that order. 5The first step in such an application, which is the only matter to be determined in this judgment, is an application for leave of the Court under s 19(1) of the Succession Act to bring a substantive application for an order under s 18 of the Act. The requirement for leave is directed to screening out baseless or unmeritorious applications and, in particular, baseless claims that a person lacks testamentary capacity: Hoffman v Waters [2007] SASC 273; (2007) 98 SASR 500 at 503; Boulton v Sanders [2004] VSCA 112; (2004) 9 VR 495 at 499. The applicant for leave is required, unless otherwise directed by the Court, to give the Court the information specified in s 19(2) of the Act, to which I will refer below. 6The applicant must give the Court, first, a written statement of the general nature of the application and the reasons for making it. Mrs Burns' solicitor has filed the requisite statement under s 19(2)(a) of the Succession Act 2006. 7The applicant must give the Court, second, satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under s 18 is sought. There is compelling evidence of Troy's lack of testamentary capacity, in a medical report of Dr McCarthy dated 13 August 2013. Dr McCarthy is a specialist rehabilitation physician, with extensive qualifications and experience, and has been reviewing Troy's condition since August 2006 since he is a patient of the Westmead Brain Injury Rehabilitation Service and she is his treating rehabilitation physician. Dr McCarthy's evidence is that Troy suffered extremely severe traumatic brain injury with substantial cognitive and physical defects in the accident. He is presently almost mute, and she points to the severity of his cognitive difficulty arising from the brain injury. She expresses the view, plainly supported by the detail in her report, that over the 6 years she has treated Troy and at the time of her recent review of him in July 2013, he lacked testamentary capacity and will not make significant improvement in the foreseeable future. 8Dr McCarthy's attention was, properly, drawn to the test of testamentary incapacity in Banks v Goodfellow (1870) LR 5 QB 549 at 565, namely that it is essential to the exercise of testamentary power that: "... a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities - that no insane delusion shall influence his will in disposing of the property and bring about a disposal of it which if the mind had been sound, would not have been made." Dr McCarthy's attention was also drawn to the discussion of testamentary capacity in Re Fenwick; Application of JR Fenwick; Re 'Charles' [2009] NSWSC 530; (2009) 76 NSWLR 22 and she was briefed with, and has acknowledging reading and complying with, the Expert Witness Code of Conduct. Dr McCarthy's evidence is of the kind identified in Re Fenwick at [126]-[130] as the best evidence of capacity. 9Dr McCarthy specifically addressed the criteria identified in Banks v Goodfellow. As to Troy's capacity to understand the nature of the act of executing a will and its effect, she observed that Troy has a minimal capacity to understand his routine at his community house but is in a "chronic amnestic state without internal awareness of day or place". As to whether he would be able to call to mind the property that was in his power to dispose of in the will, she observed that Troy could not respond to a question of such complexity; that he is unable to identify more than basic needs or wants and cannot indicate which of two choices he would prefer; that he has limited memory for even the most familiar information and no demonstrated capacity to understand everyday information; that he would not be able to understand and remember information about the general nature and effect of financial decisions and could not conceptualise the risks involved or rationally take into account the information provided, even if he were able to remember it, so as to arrive at a reasoned decision, and would be unable to express any opinion without substantial interpretation by another person. As to whether Troy could call to mind the persons who may have claims upon his testamentary bounty, Dr McCarthy referred to his difficulty in his recalling even those close to him. As to his ability to weigh the relative claims of those persons, she observed that he has such substantial cognitive impairment that that question would be incomprehensible to him. As to the question of delusion and the exercise of Troy's natural faculties, she noted that Troy was unable, in discussion with her, to go further than pointing to himself when asked where he wanted his money to go after he died. 10I am comfortably satisfied, having regard to Dr McCarthy's evidence, that Troy lacks testamentary capacity and would be incapable of making a will. 11The applicant must give the Court, third, 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 s 18 is sought. There is evidence of the size and character of Troy's estate, in the affidavit of Mrs Burns and Brett as his financial managers sworn 15 August 2013, and their most recent accounts and a portfolio report issued by the investment manager as at October 2013 are in evidence. It is sufficient to note, for present purposes, that Troy presently has substantial assets, as a result of the award of damages to him, although it is plainly possible that the level of his present assets will be reduced by the cost of his care over time. 12The applicant must give the Court, fourth, a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval. The proposed will is annexed to Mrs Burns' affidavit and would appoint NSW Trustee and Guardian as Troy's executor and trustee and provide for Troy's estate to be distributed as follows: "(a) To pay all debts, legacies, funeral and testamentary expenses and any debts, estate or succession duties; (b) To divide the balance remaining into eight (8) equal shares, four (4) such shares for my daughter ALIESHA JANE BURNS (now known as ALIESHA JANE SPITERI), two (2) shares for my mother, CAROL MILDRED NORMA BURNS and the remaining two (2) shares for my brother, BRETT DARREN BURNS; and (c) Provided that should any of the said ALIESHA JANE SPITERI, CAROL MILDRED NORMA BURNS OR BRETT DARREN BURNS fail to attain a vested interest leaving a child or children living at my death, then equally for those children on reaching the age of 18 years as to the share which his, her or their parent would otherwise have taken." In broad terms, the proposed will would therefore leave half of Troy's estate to his daughter, Aliesha, one-quarter to Mrs Burns and one-quarter to Brett. As Mrs Burns accepted in submissions, there is a substantial probability that Mrs Burns will predecease Troy, since (as I noted above) she is presently 73 years old, Troy is aged in his early 40s and there is no evidence that his life expectancy has been reduced by the serious accident to which I referred above. There is therefore a real possibility that the proposed will would ultimately operate so that half of Troy's estate is left to Aliesha or her heirs and half to Brett or his heirs. 13The applicant must give the Court, fifth, any evidence available to the applicant of the person's wishes. There is little evidence available as to Troy's wishes. Ms Burns gave affidavit evidence of conversations with Troy, after he separated from Ms Joanne Spiteri (which, as I noted above, was no later than 1993, 10 years ago) to the effect that: "Everything should go Aliesha, Joanne must not get anything." Mrs Burns gave affidavit evidence that these conversations "may have" taken place in relation to superannuation policies, but makes clear that she could not recall such a qualification being made to what was said. Mrs Burns also gave oral evidence, which I accept, that at the relevant time, Troy had no assets of any significance other than his superannuation entitlements and, probably, his motorbike. I accept the submission made by Mr Willmott and Mr Blank, who appear for Mrs Burns, that Troy was then directing his mind to the assets that he had. It seems to me that that conversation is of little or no assistance as to the intentions which Troy would today form, if he had testamentary capacity, in circumstances that, first, he now has a substantial estate which is capable of being left by will and, second, Mrs Burns and Brett have at least some claim to be recognised in his will given the assistance which they have provided to him since his accident. 14The applicant must give the Court, sixth, any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity. Dr McCarthy's report addresses that question, and I accept, on the basis of that evidence, that there is no realistic prospect of Troy regaining testamentary capacity. 15The applicant must give the Court, seventh, any evidence available to the applicant of the terms of any will previously made by the person in respect of whom the application is made. Mrs Burns gives evidence by her affidavit dated 18 October 2013 that, to the best of her knowledge, Troy never executed a will or other testamentary instrument and that he never told her of his testamentary wishes and did not express such wishes to any other person. She properly qualifies that evidence by reference to the conversations in which Troy expressed the view that "everything should go to Aliesha" to which I have referred above. There is no reason to doubt that evidence, since Troy's level of assets prior to his accident might well not have led him to treat the preparation of a will as a matter of priority. 16The applicant must give the Court, eighth, 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. It is clear that Aliesha would be entitled to claim on Troy's intestacy, and there is no suggestion that any other person has such a claim. 17The applicant must give the Court, ninth, any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of the Succession Act in respect of the property of the person. In Re Fenwick, Palmer J noted that this requirement is directed to the prospect of a successful claim under the family provision legislation. The applicant must also give the Court, tenth, 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. There is some evidence directed to the likelihood of an application being made under Chapter 3 of the Succession Act in respect of Troy's property. Troy's former partner, Ms Spiteri, might be a potential claimant under that Chapter. However, I accept the submission made on behalf of Mrs Burns that the prospects of that claim would be weakened by the long period since the relationship ended, the fact that Troy did not support Ms Spiteri over that period and the limited contact between Troy and Ms Spiteri since his accident. Ms Spiteri was, as I noted above, aware of this application, appeared before a Registrar at an earlier directions hearing in respect of the application, but did not appear at the hearing of this application to advance such a claim. There is also evidence that Troy had three close friends prior to the accident but that he has not had social visitors for many years after the accident, although there is one occasion on which those three friends visited while he was having a home visit in 2012. 18The applicant must give the Court, next, 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. Mrs Burns gives evidence, which I accept, that Troy had not considered making any gift for charitable or other purposes and had no association with any charitable institution prior to the accident. Finally, the applicant must disclose to the Court any other facts of which the applicant is aware that are relevant to the application. I have addressed the other evidence before the Court above. 19I will return to these factors below in determining the question whether leave should be granted. The requirements of s 22 of the Succession Act 20Section 22 of the Succession Act in turn provides that the Court may refuse leave unless it is satisfied that: "(a) There is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will; and (b) The proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity; and (c) It is or may be appropriate for the order to be made; and (d) The applicant for leave is an appropriate person to make the application; and (e) Adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought." In Re Will of Jane [2011] NSWSC 624 at [66], Hallen AsJ (as his Honour then was) noted that each of the conditions in s 22 must be satisfied before the Court can grant leave under s 21(2) or authorise the making of the proposed will under s 18 of the Act. It is also important to recognise that it is, as Mrs Burns accepted in submissions, a serious matter for the Court to determine the content of a person's will, and, it goes without saying, it should only do so if the matters necessary to its statutory jurisdiction to do so are established. 21I am satisfied of the first of these matters, by reason of Dr McCarthy's evidence to which I have referred above. 22The second question, whether the proposed will is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, raises greater difficulty and will need to be addressed at some length. I approach that question recognising that, as Palmer J observed in Re Fenwick above at [132], the Court's jurisdiction in an application of this kind is "remedial and protective" and the Court's role is "to endeavour to rectify a problem which is affecting people's lives, in the best possible way". At the same time, the Court's authority is limited by the statutory conditions set in s 22 of the Act and is not at large. 23Mr Willmott draws attention to Palmer J's consideration of the test in s 22(b) of the Act in Fenwick at [151]-[152], where his Honour expressed the view that a standard of "reasonably likely" involves a less "black and white" test than a test of "likely", and that the test may be satisfied if the Court considers "there is a fairly good chance that the result is likely" or if "it recognises that other reasonable people regard the result as likely, even if the Court itself would differ". His Honour also noted that, where an incapacitated person had not made a will (as is the case here), the first question is whether it is reasonably likely that person would have made a will, that the Court should not start with a presumption against intestacy, and that the Court "must be satisfied by the evidence that it is 'reasonably likely' - in the sense of 'a fairly good chance' - that the person would have made a will at some time or another, had not testamentary incapacity intervened". 24His Honour also noted at [169] that, if there was insufficient evidence for the Court to form a view as to that question, the applicant will have failed to discharge the burden of proof that he or she bears under s 22(b) of the Act and the application must be dismissed. Mr Willmott submits, and I accept, that the size of Troy's estate and the fact that persons including Aliesha and Mrs Burns and Brett have potential claims upon him is such that, had testamentary incapacity not intervened, it is likely that Troy would have made a will. It does not seem to me that his failure to make a will prior to the accident, when his assets were very limited as noted above, displaces that conclusion. 25The application of s 22(b) of the Act has been considered in subsequent case law. In Application by Peter Leslie Kelso [2010] NSWSC 357, the application of the test set out in that paragraph was straightforward, since it was inconceivable on the particular facts that the person who lacked capacity would have wanted her estate to pass to the person who would take it on intestacy, and the two other persons in her life were recognised in the proposed will. That decision is, however, of significance for another issue which I must address below, since Ball J there approved a will that left her estate to those two other persons on the basis that it was reasonably likely that the person who lacked capacity would have made such a will, without any suggestion that any difficulty arose from the fact that a range of possibilities might be available as to the proportion of the estate that might be left to those two persons in such a will. 26In Re Will of Jane above, Hallen AsJ (as his Honour then was) delivered a comprehensive judgment dealing with the application of, inter alia, s 22(b) of the Act in circumstances that the suggested will in that case would have left the estate to one child to the exclusion of the others. His Honour observed at [73] that: "The court's concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is reasonably likely to be incapable of making a will, that must be considered. It is not an objective, or hypothetical, person who is considered. The jurisdiction of the court is, so far as is possible, to make a statutory will in the terms in which a will would have been made by that person if the person had testamentary capacity at the time of the hearing of the application." 27His Honour further also observed at [76] that: "If an actual intention cannot be established, the sub-section speaks in the chameleon-like language of reasonable likelihood. The degree of satisfaction that the phrase "reasonably likely" contemplates is difficult to discern. The phrase has a different connotation from the single word "likely". The qualifying adverb "reasonably" requires that the word "likely" be given a meaning less definite than "probable". It is that word ("reasonably") which governs the standard of likelihood. It lessens the intensity of the word "likely". In other words, quantitative guidance is suggested by the word "reasonably" whilst the word "likely" requires a qualitative judgment." 28His Honour referred to the application of the standard of "reasonably likely" in other contexts, noting that, in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 at 842, Marks J had observed that the concept was directed to a chance that was "fair", "sufficient" or "worth noting" and that in Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31 at [4], Perram J observed that the test was "a different concept to reasonable possibility" and "connotes a degree of certainty ... that travels beyond the merely conjectural". His Honour further identified factors relevant to determining whether a proposed statutory will was "reasonably likely" (at [81]): "Whether the proposed statutory will is "reasonably likely" must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed will is one that is, or would have been reasonably likely to have been, made by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture." 29His Honour also observed at [83] that: "The question is not whether he, or she, would have preferred the statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be 'reasonably likely' to be a will that he, or she, may have made if he, or she, had testamentary capacity." 30In Re Estate of S [2012] NSWSC 1281, Ward J referred to and followed the reasoning in Re Fenwick and Re Will of Jane, in a case where there was evidence of testamentary intention arising from an earlier draft will and from a conversation prior to the incapacity of the relevant person. 31In the present case, it seems to me that the Court could not be satisfied that any proposed will is one that would have been made by Troy, so far as his actual subjective intentions are concerned. The only statement made by Troy in this context was, as I noted above, made many years ago at a time where his asset position was very different from his current position and, in my view, provides no real assistance to determining his actual wishes. 32The question for the Court is therefore whether the proposed will is one that is "reasonably likely" to have been made by Troy, in all the relevant circumstances. Mrs Burns submits that the proposed will satisfies that standard because it recognises both Aliesha's and her and Brett's claims on the estate. She submits that, if Troy were to die intestate, the whole of his estate would devolve on Aliesha; that she and Brett have devoted substantial efforts to Troy's assistance and welfare since the accident; and they submit that Aliesha has had comparatively little involvement with Troy since his accident, by contrast with their diligence in attending to his welfare. Aliesha, who was present in Court and had had the opportunity to tale legal advice, did not seek to be heard in opposition to the factual basis of those submissions. 33There seems to me no doubt that, if Troy now had capacity to make a will, he would have generously provided for Aliesha in that will and Mrs Burns, appropriately, conducted this application on that basis. Mrs Burns gave evidence, to which I have referred above, of conversations with Troy after he separated from Aliesha's mother to the effect that: "Everything should go to Aliesha, Joanne must not get anything." I have referred to the context of that conversation and its limited value as evidence of Troy's actual present intention above, but it is nonetheless consistent with a likely intention to provide for Aliesha. That likely intent also finds strong support in Mrs Burns' evidence of Troy's attitude to his daughter, observing that: "Troy and Aliesha had a very close relationship. She could do no wrong. He was devoted to her. He adored his daughter. She used to come and stay with Troy and [Mrs Burns] every second weekend up until Troy's accident. She was staying with [Mrs Burns] the weekend of his accident. A photograph of Aliesha hangs atop Troy's bed." That evidence strongly supports the conclusion that Troy would have generously provided for Aliesha. 34Several matters also support a view that, if Troy now had capacity to make a will, he would also have recognised Mrs Burns and Brett in that will. The evidence is that, other than for a short time, Troy has always lived with Mrs Burns. When Aliesha's mother lived with Troy, for about a year, they moved to an outside room away from Mrs Burns' house although they used the bathroom and kitchen of that house since that outside room did not have those facilities. There is also uncontested evidence of the extent of Mrs Burns' and Brett's care for Troy since his accident. Mrs Burns visited Royal North Shore Hospital every day when he was in the intensive care unit on life support and Brett was closely involved in addressing the immediate issues arising from the accident; and Mrs Burns thereafter visited Troy 2-3 times per week when he was in the brain injury unit at Liverpool Hospital and did his laundry; she can now only visit him infrequently since he moved to the care facility at Bella Vista as she does not drive and that visit involves a 4 hour trip, although the staff bring him to the home which was purchased for him and in which she resides. Mrs Burns' evidence was that she continues to liaise with Troy's dietician, speech therapist and physiotherapist and that there is an annual meeting at the care facility to assess his position. She gives evidence that, to her knowledge, Brett and she are Troy's only visitors since his hospitalisation. Her evidence is that Aliesha and his former partner went to see him on a number of occasions, but the last occasion was some years ago, and expresses disappointment that Troy has not had Aliesha's company in recent years. 35Mrs Burns' evidence is that in September 2008 (after Troy had moved to the care facility at Bellivesta) she and Brett purchased for Troy, as his financial managers, a property at Revesby, demolished the old house and built a new residence to meet Troy's requirements. She gives evidence that she sold her house and moved into Troy's home as she planned to care for him on a fulltime basis, but that did not happen since Troy needs two carers continuously, is incontinent and too heavy for her to lift. She gave the proceeds of the sale of her home, less a small amount, to Brett to assist with the purchase of his home. She gives evidence that, while she hopes that Troy's health will improve so that he can come home to live with her, this is not presently possible. That position seems unlikely to change given Mrs Burns' age and Troy's condition. 36By his affidavit dated 15 August 2013, Brett gives evidence of his role immediately after the accident and his involvement in the purchase of the property and construction of a home to meet Troy's needs, to which I have referred above. He gives evidence that: "I assist my mother with caring for Troy and his affairs. I visit him whenever he comes home and I visit him at Bella Vista. Sometimes I take my mother with me when I go to visit, sometimes I don't. I try to spend time with Troy 1 to 1. When I'm working in his area, I usually call to see him. I am mindful that I shall become Troy's primary family carer when my mother is no longer with us." 37Factors that might reduce provision for Mrs Burns and Brett include that Troy had some insurance, apparently in the amount of $150,000, which paid out after the motor vehicle accident. Mrs Burns' evidence as to how that payment was treated is somewhat vague; she is not sure what happened in relation to the insurance monies although she expresses a belief that they were paid into Troy's bank account. It must also be recognised that Mrs Burns and Brett have, at least indirectly, benefited to some extent from the arrangements made to care for Troy, since Mrs Burns now lives in a house purchased from his funds, which he visits from time to time, and Brett benefited from that arrangement because it allowed Mrs Burns to sell her house and give him the proceeds. 38It is important to recognise that the question raised by s 22(b) of the Act is not whether the proposed will would be a "fair" will (or, by contrast with s 22(c) of the Act, whether it would be an "appropriate" will) but whether the particular will is one that Troy was reasonably likely to have made, in the sense noted above. I have been troubled by the question whether it can be said that it would be "reasonably likely" that Troy would make a will in the proposed form, where there are a range of possibilities as to the contents of such a will. These possibilities include at least: