First Plaintiff v Defendant

1 The plaintiffs, Claire Bailey and Elizabeth Curtain, make application under s 21 of the Wills Act 1997 ('the Act') for orders authorising a will to be made on behalf of their friend, Audrey Evans. The plaintiffs are sisters and joint administrators of Ms Evans' affairs.

2 The plaintiffs seek orders that the Court authorise the making of a statutory will on behalf of Ms Evans ('the proposed will'). The proposed will appoints the plaintiffs as executrices of Ms Evans' will and trustees of her estate. It then provides for the residue of her estate to be paid to the plaintiffs equally between them. It is not necessary to go through the remaining terms of the proposed will.

3 Ms Evans was born on 29 December 1924 and is now aged 90 years old. She no longer has testamentary capacity. Ms Evans did not marry or have any children.

4 Her next of kin is her niece, Rosalie Richardson, who is the defendant in this proceeding. In the event of intestacy, Ms Evans' estate will pass to Mrs Richardson. Mrs Richardson is 84 years old, and while she and her three children swore affidavits in opposition to the application, they no longer oppose the application by the plaintiffs.

5 The reason for this is because counsel for both parties informed the Court they had reached an agreement whereby:

(a) if the Court makes orders authorising the making of the proposed will, the plaintiffs will pay 25 per cent of the estate of Ms Evans to Mrs Richardson; and

(b) if the Court declines to make orders authorising the making of the proposed will, Mrs Richardson will pay 25 per cent of the estate of Ms Evans to the plaintiffs.

6 The agreement, which is not binding on the Court, does not contemplate the Court authorising the making of a will in different terms to the proposed will. Counsel for Mrs Richardson informed the Court that Mrs Richardson would not oppose the application made by plaintiffs and sought leave to be excused from taking any further part in the proceeding. It does seem a curious situation that Mrs Richardson does not oppose the application where under the terms of the agreement, she stands to benefit if the plaintiffs' application fails although counsel for the plaintiffs described the situation as each party taking 'a bit of insurance against being unsuccessful'.

7 The fact that the parties have reached a compromise does not relieve the court from considering all relevant matters and whether an order should be made authorising a will to be made in the terms put forward by the plaintiffs. The ultimate decision must rest with the court, notwithstanding the fact that a compromise has been reached by the parties.[1] Nevertheless, the existence of the agreement and the defendant's lack of opposition to the application will both be considered in determining the plaintiffs' application.

8 Pursuant to s 21D of the Act, the Court made orders that Mr David Hughes of the law firm, Lawson Hughes Peter Walsh, represent Ms Evans in this proceeding. Mr Hughes is a highly regarded legal practitioner who practises in the area of wills and probate. In this proceeding, Mr Hughes filed two affidavits in relation to his four meetings with Ms Evans. His evidence of those four meetings was very helpful for the Court in its consideration of the plaintiffs' application.

9 Pursuant to s 21C of the Act, Ms Evans and/or her legal representative are entitled to appear at the hearing. At the hearing on 13 May 2013, Mr Hughes appeared and was excused from further attendance as the plaintiffs informed the Court that he was not required for cross examination.

10 Although not relevant to this proceeding because he was not required for cross examination, Mr Hughes did raise an important point arising from his appointment to represent Ms Evans had he been required for cross examination. I will deal with this point at the end of this judgment.

11 This is the first reported judgment for a statutory will under the new provisions of the Act as amended by Justice Legislation Amendment (Succession and Surrogacy) Act 2014 ('the Amending Act'). [2]

12 Pursuant to s 21B of the Act, before making an order authorising the making of the proposed will, the Court must be satisfied of three matters, namely that:

(a) Ms Evans does not have testamentary capacity;

(b) the proposed will reflects what the intentions of Ms Evans would be likely to be, or what the intentions of Ms Evans might reasonably be expected to be, if Ms Evans had testamentary capacity; and

(c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for Ms Evans.

13 Before setting out the evidence, it is convenient to set out the legislation and Rules before and after the Amending Act.

14 Before the recent amendments to the Act, the relevant sections were as follows:

21 Wills for persons who do not have testamentary capacity authorised by the Court

(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.

22 Hearing an application for an order

(1) 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.

(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.

...

26 Matters of which Court must be satisfied before application for leave to make an application may be granted

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 reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, 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.

27 Hearing an application for leave

(1) In considering an application for leave to make an order under section 21 -

(a) in addition to any matter which the Court may take into account under section 28, the Court may inform itself in any manner it sees fit; and

(b) the Court is not bound by the rules of evidence.

(1A) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.

(2) If the Court is satisfied, on the evidence tendered under subsection (1) of the matters set out in section 26(a) to (c), the Court may determine that the application for leave to apply for an order under section 21 proceed as an application for such an order.

28 Information which the Court may require in support of an application for leave

In proceedings for the hearing of an application for leave to apply for an order under section 21, the applicant must, if so required by the Court, give -

(a) a written statement of the general nature of the application and the reasons for making it;

...

15 The Act was then amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. The relevant sections of the amending Act now provide:

21 Wills for persons who do not have testamentary capacity authorised by the Court

(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.

(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.

21A Information which the Court may require in support of an application under section 21

In proceedings for the hearing of an application for an order under section 21, the applicant, if required by the Court, must give the following -

(a) a written statement of the general nature of the application and the reasons for making it;

...

21B Matters of which the Court must be satisfied before making an order under section 21

Before making 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 reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and

(c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for the person.

...

22 Hearing an application for an order

(1) In considering an application for an order under section 21 -

(a) the Court may have regard to any information given to the Court under section 21A; 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.

(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.

(3) In making an order under section 21, the Court may make any necessary related orders or directions.

16 Order 17 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 sets out the rules applicable to applications under s 21 of the Act. Rule 17.05 provides:

17.05 Want of testamentary capacity

(1) An application under section 21(2) of the Act for an order under section 21(1) shall be made by originating motion supported by an affidavit.

(2) The affidavit shall state the acts, facts, matters and circumstances relied upon to satisfy the Court that -

(a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity;

(b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity;

(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.

(3) Without limiting paragraph (2), the affidavit shall -

(a) describe the general nature of the application to be made for an order under section 21(1) of the Act and give the reasons for making that application;

(b) give a reasonable estimate, formed from any evidence available to the plaintiff (the nature of which shall be stated), of the size and character of the estate of the person on whose behalf the will is to be made or revoked;

(c) exhibit the proposed will for which the plaintiff is seeking the Court's approval or a copy of the will which the plaintiff is seeking to have revoked, as the case may be;

(d) set out any evidence available to the plaintiff of each of the matters referred to in paragraphs (d), (e), (f), (g), (h), (i), (j) and (k) of section 21A of the Act if such matter is relevant to the application for an order under section 21(1) of the Act or, if not relevant, state why such matter is not relevant; and

(e) set out any other evidence relevant to the application.

(4) The affidavit shall state whether the application is made upon notice and, if so, to whom notice has been given or is proposed to be given.

(5) On the hearing of the application, where revocation is sought, the original will shall be produced to the Court or its absence shall be explained by affidavit.

17 I am satisfied that the plaintiffs' application meets the requirements in r 17.05.

18 The explanatory memorandum to the Amending Act explains that the Amending Act repealed the requirement that a person obtain the leave of the Court to make an application under s 21(2) of the Act. The amending Act inserted new sections 21A and 21B.

19 Section 21A lists what an applicant must give the Court if so requested at the hearing of the application for the statutory will. This mirrors the old s 28, which listed what an applicant must give the Court if so required at the hearing of the application for leave to apply for a statutory will. Section 21A adds one new matter in subparagraph (e), 'any evidence available to the applicant of the ability of the person to participate in the proceedings and express the person's wishes'.

20 Section 21B replaced the old s 26. The effect of s 21B is that the Court must be satisfied of the three matters there listed, before making a statutory will. Under the old s 26, the Court was required to be satisfied of those three matters, before granting leave to apply for a statutory will. The new section therefore moves the consideration of those three matters from the application for leave stage (which no longer exists) to the substantive application stage.

21 The Amending Act also inserted a new section, s 21D, which allows the court to order separate representation of a person lacking testamentary capacity, and make any order it considers necessary to secure that representation.

22 The abolition of the requirement that applicants for a statutory will must first obtain leave to apply was recommended by the Victorian Law Reform Commission ('the VLRC') in its Succession Laws Report, dated August 2013.

23 In the Report, the VLRC first discussed the issue of determining the intentions of the incapacitated person, and pointed out that the second limb of what is now s 21B(b) is expressed in more objective terms than the first limb.[3] The VLRC supported retaining the test in what is now s 21B(b), and therefore no change was made. So in terms of determining the intentions of the incapacitated person, the Amending Act did not make any changes.

24 The VLRC next considered the involvement of the incapacitated person in the decision on the s 21 application. It was noted that it is legitimate for a beneficiary to bring an application for a statutory will, and that many cases are brought by people who are proposing a will under which they would receive a benefit.[4] As to the incapacitated person's involvement, the VLRC recommended the introduction of s 21D. While the court could, under its inherent jurisdiction, already order separate representation, the VLRC noted that explicit recognition in the Act may make it more likely that the incapacitated person's views are taken into account. The VLRC said that despite not having will-making capacity, the incapacitated person may still be able to express some views or preferences that the Court could take into account.[5]

25 The third matter dealt with by the VLRC was accessibility of the statutory wills process. The VLRC commented that given the Supreme Court has authorised only 32 statutory wills in 16 years, it may be that the system is not being used by those whom it is intended to assist.[6]

26 In order to make the system more accessible, the VLRC recommended abolishing the two stage process of applying for leave to apply, and then applying for authorisation of a proposed will. The VLRC said that in practice the two stages were combined, because courts invariably used the discretionary power in the old s 27(2) to determine that the application for leave to apply proceed as an application for authorisation of the proposed will. It said the legislation should be amended to reflect that practice.[7]

...once leave has been given, it is extremely unlikely, in my opinion, that an order authorising a will to be made would be refused by the court. It is, therefore, very hard to see why the second step was thought to be necessary as it seems to me that it serves no useful purpose.[8]

28 His Honour doubted the justification for the two step process, as explained by the Court of Appeal in Boulton v Sanders.[9] The Court of Appeal there said that the first step screened out baseless or unmeritorious applications at an early stage.

29 The VLRC noted that costs orders are a sufficient deterrent to vexatious or unmeritorious applications being made.[10] The VLRC's recommendation was adopted, and the leave to apply requirement was abolished. There is now a single application for a statutory will.

30 The VLRC also noted that under the statutory will regime introduced in 1997, the Court does not make a will. Rather, it determines whether to authorise a will proposed by the applicant.[11]

31 In the second reading speech for the Amending Act, the Attorney-General said:

The bill simplifies the process in relation to statutory wills...

In accordance with the VLRC's recommendations, the bill makes the application process for a statutory will more accessible by removing the current requirement to first apply for leave to bring the application. It also provides the court with a greater opportunity to ascertain the views of the person on whose behalf the statutory will is proposed, where this is possible.[12]

32 The Amending Act made no changes to the principles to be applied in a statutory will application. The changes were merely procedural. The law has been changed to bring it into line with what has been happening in the Court, and a greater emphasis has been placed on the views of the incapacitated person, where that person is capable of expressing any views.

33 Accordingly, the principles that were applied in the leave to apply stage under the old legislation, are now to be applied in the substantive application for authorisation of a proposed will.

34 The plaintiffs relied on Monger v Taylor,[13] State Trustees Limited v Do and Nguyen (Do),[14] Saunders v Pedemont.[15]

35 In Monger v Taylor, the defendant was the incapacitated person's sister, and the plaintiff was the incapacitated person's nephew by marriage and her administrator. The plaintiff applied for leave to apply for a statutory will. Leave was granted, and pursuant to s 27(2), the Court went on to grant the substantive application for approval. Gillard J said that having been satisfied of the three matters in s 26 (now in s 21B), and taking into account the additional matters in s 28, it was his opinion that the proposed will put forward by both parties should be authorised by the Court. The proposed will left the incapacitated person's estate to the plaintiff.

36 The plaintiff in Monger v Taylor had located the defendant, who engaged solicitors and was joined as a defendant to the proceeding. A mediation had been unsuccessful, but the parties later compromised, and a new proposed will was drafted. Essentially, under the compromise the defendant was to receive $47,000 and the balance was to go to the plaintiff. The application was effectively a joint application.

37 Gillard J commented on the relationship between the leave application and the actual application, as follows:

If the court grants leave then it follows it is satisfied of the matters specified in s 26, namely, lack of testamentary capacity, that the proposed will accurately reflects 'the likely intentions of the person' and it is reasonable in all the circumstances for the court to authorise the making of the will.

The weight that should be attached to these findings on the actual application to obtain authority to make the will must depend upon all the circumstances. If new facts emerge after leave is granted then the court may attach very little weight to the facts that underpin the order granting leave. On the other hand, and the present application is an example, if the application for leave and if granted the actual application are heard at the one hearing then no doubt substantial weight would be attached to the findings made on the leave application.

...

A consideration of Division 2 of Pt 3 of the Act leads to the conclusion that the leave application is at least as important as the application itself and in most cases would be the more important application. This conclusion is borne out by the terms of s 26, s 27, s 28 and s 29 of the Act. The legislation sets out in some detail the matters that must be taken into account on an application for leave and the matters listed in s 28 reinforced by the obligation in the Rules to provide the information to the court establishes the importance of the leave application. In addition, the legislature has recognised that the actual application can be heard at the same hearing as the application for leave to apply if leave is granted. See s 27(2).

Because under s 26 the court must be satisfied of certain matters before it can grant leave to apply, the granting of the leave would only be made in circumstances where most if not all relevant matters which would be relevant to the application itself were considered and determined.

That is not to say that there may be some cases where there are two hearings and where there are changed facts or circumstances which would cause the court to further consider the application after leave is granted but in many cases the next step would be a mere formality once leave is granted.[16]

38 On the effect of the parties' compromise, Gillard J said:

...that does not relieve the court from considering all relevant matters and determining whether leave should be granted and if so whether an order should be made authorising the will to be made in the terms put forward by the parties. In other words the determination is to be made by the court and although weight would usually be given to any compromise effected by the interested parties, the ultimate decision must rest with the court and that is made clear by the provisions of s 21 of the Act.[17]

39 His Honour then considered the three matters in s 26. Since Monger v Taylor the second matter has been amended, so I will not set out what his Honour said in relation to the incapacitated person's likely intentions. As to the third matter, his Honour said that the Court should consider the matters specified in s 28 (now s 21A) and any other relevant matters placed before the Court.[18] The list of relevant matters is not exhaustive.[19]

40 Also on the third matter, Gillard J said the Court should avoid, if possible, anything that may severely diminish the value of the estate, such as litigation.[20] Accordingly, weight was given to the fact that the parties had compromised.

41 In Do, State Trustees Limited, the plaintiff, sought leave to make an application for a statutory will. The plaintiff was the administrator of the incapacitated person's estate. Bell J explained the 2007 amendment to the second matter in s 26, as follows:

As to Ms Aukland's intentions, the Wills Act was amended by the Wills Amendment Act 2007 to give somewhat more scope to the court to authorise the making of wills on behalf of people lacking testamentary capacity. The Act previously required the court to be satisfied that the proposed will 'accurately reflects the likely intentions of the person'. Now it requires the court to be satisfied that the proposed will 'reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be'.

The significance of the amendment is that the court is no longer required to be satisfied that the proposed will would 'accurately' reflect the person's likely intentions. It is sufficient for the court to be satisfied that it would reflect their 'likely' or 'reasonably ... expected'' intentions. In that regard, the nature of the specified information illuminates the scope of the court's function. A broad-brush approach is required, for otherwise the beneficial purpose of the function might be defeated.[21]

42 Bell J also noted that the jurisdiction of the Court under s 21 is to authorise the making of a will in proposed terms, and not itself to write that will.[22] His Honour said that did not stop the Court from making appropriate remarks about what it might authorise and the applicant then seeking to amend the application accordingly. Bell J made orders granting leave to apply for authorisation of the making of the proposed will, and authorising the making of that will.

43 In Saunders v Pedemont, Habersberger J refused an application under s 21. On the second matter to be considered under s 26, his Honour quoted Bell J in Do and said:

Whilst the phrases now used in the Victorian Act require the proposed will to reflect 'what the intentions of the person would be likely to be' or 'what the intentions of the person might reasonably be expected to be', and are therefore different to the 'reasonably likely' wording of the New South Wales Act, I consider Palmer J's analysis of that wording to be of assistance in construing the alternative phrase in s 26(b). To adopt his Honour's language, the phrase can mean 'a fairly good chance that the proposed will reflects what might be the testator's intentions', or 'some reasonable people could think that the proposed will reflects what might be the testator's intentions', or 'some reasonable people could think that there is a fairly good chance that the proposed will reflects what might be the testator's intentions'.[23]

44 The reason for refusing the application was that his Honour was not satisfied on the balance of probabilities that the fourth proposed will reflected what the incapacitated person's intentions would be likely to be, or what his intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what his intentions might be, or that some reasonable people could think that it reflected what might be his intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be his intentions, if he had testamentary capacity. In that case there was a pre-existing will, so the plaintiffs had to establish on the balance of probabilities that the incapacitated person would want to change that will. His Honour was not persuaded to interfere with the valid and operative will. Even had he been so persuaded, it would not have been on the terms proposed by the plaintiffs.[24] The fact that the plaintiffs kept changing the proposed terms was evidence that they were rather uncertain about what division of the estate would reflect the incapacitated person's likely intentions.[25]

45 Habersberger J said that while there is some flexibility in matters of detail, 'the task of a Judge under s 26 of the [Act] is to assess the terms of the proposed will not to approve a completely different will drafted by him or her'.[26] The exception to this was expressed in Boulton v Sanders:

...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 redraft the terms of the proposed will in order to perfect its conformity to the testator's likely intentions.[27]

46 In an application under s 21, the plaintiff must establish his or her case on the balance of probabilities.[28]

47 The plaintiffs filed two affidavits sworn by Ms Curtain on 10 December 2014 and 25 March 2015 respectively and one affidavit sworn by Ms Bailey on 26 March 2015. In her affidavit sworn 25 March 2015, Ms Curtain replied to the affidavits sworn by Mrs Richardson and her three children; however, I will not set out that evidence as Mrs Richardson no longer challenged the plaintiffs' evidence.

48 Although the application was originally contested but as a result of the agreement reached between the parties, the defendant no longer opposes it, counsel for the plaintiffs identified parts of the affidavits filed by the plaintiffs that may have been contested were there a contradictor. As a result, several deletions were made to the affidavits on the grounds of their inadmissibility.

49 In her first affidavit sworn on behalf of both plaintiffs, Ms Curtain deposed that she and Ms Bailey first met Ms Evans in approximately early 2006 at the Melbourne Cricket Ground ('the MCG') as a result of all of them being avid football supporters of Collingwood. Ms Evans attended every Collingwood game held at the MCG and Etihad Stadium. At the MCG, Ms Evans sat in a reserved seat behind the plaintiffs. The three became good friends. They bought lunch for Ms Evans and walked her to the railway station after each game. Occasionally, when Collingwood played interstate, Ms Evans would watch the game at Ms Curtain's home. This describes their relationship for almost every week of the football season, until Ms Evans fell ill in 2012.

50 Before falling ill, Ms Evans lived in Surrey Hills. In about June 2006, Ms Curtain, who lives in Hawthorn, started visiting her and taking meals to her once or twice a week. Ms Bailey called Ms Evans up to five nights each week to make sure she was well and to provide her with company and support. It was not unusual for one of the plaintiffs to be on the phone to Ms Evans for an hour or more each night. The plaintiffs also assisted Ms Evans with cleaning her house.

51 In around 2008, the plaintiffs introduced Ms Evans to their mother and ever since, the four of them have lunched together once every six weeks.

52 On 4 July 2012, Ms Evans was admitted to Box Hill Hospital after a fall. From July 2012 to 13 September 2012, Ms Evans was in rehabilitation at the Peter James Centre. While she was at both places, the plaintiffs attended to Ms Evans' personal hygiene needs, made sure she had clean clothes, collected her mail and took her gifts to make her feel special. They also helped Ms Evans pay her bills and attended to her other requests from time to time.

53 On 15 August 2012, the plaintiffs applied to the Victorian Civil and Administrative Tribunal ('the VCAT) for orders appointing Ms Curtain as Ms Evans' limited guardian and Ms Bailey as Ms Evans' administrator. On 29 August 2012, the VCAT granted the applications.

54 After becoming limited guardian and administrator, the plaintiffs helped Ms Evans to sell her home in Surrey Hills, her car and shares, and arranged for Ms Evans' placement into an aged care facility. The sale proceeds were used for Ms Evans' day to day expenses and to pay the accommodation bond to the care facility.

55 On 13 September 2012, Ms Evans was transferred to Viva Care Nursing Home in Essendon. Then, on 9 May 2013, she moved to Edith Bendall Lodge, where she currently resides.

56 On 17 July 2013, the VCAT reviewed its previous orders and appointed the plaintiffs as joint administrators. Ms Evans no longer needed a guardian because she lived in a nursing home.

57 The plaintiffs visit Ms Evans regularly at Edith Bendall Lodge and take her out on a weekly basis. Ms Evans is included in all the plaintiffs' family events such as birthdays, weddings, Easter and Christmas.

58 Ms Curtain exhibited three medical reports to her affidavit which she said are the only evidence the plaintiffs have regarding Ms Evans' testamentary capacity.

59 Ms Curtain deposed that Ms Evans does not have any liabilities, and has the following assets:

(a) nursing home bond of approximately $453,150;

(b) bank account balance of approximately $38,605.57; and

(c) jewellery, furniture and clothes worth approximately $5,000.

60 An account to the VCAT by the plaintiffs as administrators for the year ending 30 June 2014 stated that Ms Evans had net assets of $496,755.57.

61 Ms Curtain deposed that Ms Evans has told the plaintiffs numerous times that she wants them to receive all her estate after her death. Ms Curtain said that Ms Bailey and their mother have informed her that Ms Evans has expressed the same wish to them. However, Ms Curtain said she does not have any documentary evidence available of Ms Evans' testamentary wishes.

62 Ms Curtain said she does not know of any previous will made by Ms Evans. Ms Evans told the plaintiffs that she has never made a will. When the unit was sold, Ms Curtain went through Ms Evans' belongings and did not come across anything that indicated Ms Evans has ever made a will. Ms Curtain, through her solicitors, made enquiries of Robinson Gill Lawyers, who acted for Ms Evans when she purchased her Surrey Hills home in 1996. Robinson Gill Lawyers replied saying that they did not hold any documents in their deeds section for Ms Evans.

63 Ms Curtain deposed that the plaintiffs do not have any evidence available to them that indicates that a Part IV application will be made in respect of Ms Evans' estate, nor do they have any evidence as to the likelihood of such an application being made.

64 Ms Curtain deposed that Peter Champ, a social worker who was involved with Ms Evans while she was at Peter James Centre, searched for any relatives of Ms Evans and discovered a great niece, Lynne Whitely. Ms Curtain asked Ms Evans about Ms Whitely, and Ms Evans said she did not like her, did not want Ms Whitely to know where she lived, and she wished to have no contact with her.

65 On 1 December 2014, Ms Curtain's solicitors contacted Ms Whitely. Ms Whitely said that her mother, Mrs Richardson, is still alive and is Ms Evans' closest living relative. Ms Evans was adopted by Mrs Richardson's grandparents. Mrs Richardson's father was Ms Evans' brother. Mrs Richardson has three children, who are all living. They are Ms Whitely, Leslie Savage and Michael Richardson.

66 Ms Curtain deposed that when she asked Ms Evans about Mrs Richardson and her three children, Ms Evans said she did not like them and did not want them to know where she lived. Ms Curtain said that as far as she is aware, Mrs Richardson and her three children are Ms Evans' only living relatives.

67 The plaintiffs sent copies of this application to Mrs Richardson and her three children. Ms Curtain said that they are the only people who might be able to claim on intestacy. Ms Curtain has no evidence of any other person who might be entitled to claim on intestacy.

68 Ms Curtain has searched Ms Evans' records and has not found any evidence of any past gifts for charitable or other purposes. Ms Curtain has no evidence available of any gift for charitable or other purposes that Ms Evans might reasonably be expected to give or make by will.

69 Ms Curtain deposed that the proposed will reflects what Ms Evans' intentions would likely be, or what might reasonably be expected to be if she had testamentary capacity. Ms Curtain submitted that it is reasonable for the Court to authorise the making of the proposed will for Ms Evans.

70 In her affidavit sworn 25 March 2015, Ms Curtain deposed that in November 2012 she notified Australia Post to redirect Ms Evans' mail to Ms Bailey's address. Ms Bailey lives in Pascoe Vale. Neither of the plaintiffs received any mail addressed to Ms Evans from Mrs Richardson or her children.

71 Ms Curtain gave evidence of three instances in which Ms Evans told her that she did not want to have any contact with Ms Whitely and/or Mrs Richardson, due to a falling out over Ms Whitely and Mrs Richardson asking Ms Evans to make a will and being rude to her. The first instance was in or about 2006 at Ms Evans' home in Surrey Hills. Ms Curtain said that Ms Evans had a volatile relationship with Mrs Richardson and she eventually decided she did not want any further contact with Mrs Richardson or her children.

72 Ms Curtain deposed that while Ms Evans was staying at the rehabilitation centre, the plaintiffs made daily visits to her and Ms Whitely made one visit. On that occasion, Ms Evans told Mr Champ to tell Ms Whitely to go home. Ms Evans repeatedly told the plaintiffs and the staff at the rehabilitation centre that she did not want to see Mrs Richardson or her children.

73 According to Ms Curtain, Ms Whitely did not attend the VCAT hearing. Only the plaintiffs, their mother, and Ms Evans attended the hearing. At the VCAT review hearing in 2013, only the plaintiffs were present. Ms Curtain said that after the review hearing, Ms Whitely telephoned her. Ms Curtain told her that Ms Evans had said she did not want any contact with the family. Ms Curtain also said that Ms Whitely would be notified of any significant changes in Ms Evans' health. Ms Whitely asked where Ms Evans was living, but Ms Curtain refused to tell her as Ms Evans did not want her to know. Ms Curtain deposed that Ms Evans said she wanted to have no contact with Mrs Richardson or her children.

74 Ms Curtain said one of the plaintiffs' first priorities as limited guardian and administrator was to move Ms Evans from the rehabilitation centre to a home closer to them. The plaintiffs finally settled on Edith Bendall Lodge, and put her name on a waiting list in September 2012. Until a vacancy became available in May 2013, the plaintiffs placed Ms Evans in temporary accommodation at Viva Care.

75 This was a difficult time for Ms Evans, who did not understand why she could not go home. To help Ms Evans in this period, the plaintiffs took Ms Evans to their homes for overnight stays once or twice every week.

76 Ms Curtain deposed that the plaintiffs spent countless hours preparing Ms Evans' unit for sale. After her driver licence was cancelled in 2011, the plaintiffs took Ms Evans shopping, to her hairdressing appointments every six weeks, for lunch once a week, and to the football. They assisted her with her banking needs and paying her bills. Ms Curtain visited Ms Evans at her Surrey Hills home several times a week and took her evening meals.

77 Since well before Ms Evans was placed into care, the plaintiffs have supported and loved Ms Evans. Ms Evans has always been included in family celebrations, and Ms Curtain said she is part of her family.

78 Ms Bailey swore an affidavit dated 26 March 2015 in reply to the affidavits sworn by Mrs Richardson and her three children.

79 Ms Bailey said her relationship with Ms Evans started at a Collingwood football match. The plaintiffs noticed that she was on her own, so they started to buy her a pie at half time and walk her to the station after the game. Ms Bailey said they regularly drove her home. Their relationship grew from there.

80 Ms Bailey deposed that on several occasions Ms Evans has told her that she, Ms Evans, did not want to see Mrs Richardson or her family because they had been rude to her and would always ask her about making a will. She gave evidence of three such instances. Ms Bailey said that in 2006 Ms Evans told her that there had been a falling out between Ms Evans and Mrs Richardson and her children because they put pressure on her to leave her estate to them. Ms Bailey said that Ms Evans expressed her thoughts to the plaintiffs without prompting.

81 Ms Bailey said that as Ms Evans' administrator, she receives all Ms Evans' mail. Ms Bailey said that in the last eight years, she has not been aware of any letter, birthday card or telephone call that Ms Evans received from Mrs Richardson or her children.

82 Ms Bailey said that Ms Evans has been dependent on the plaintiffs for all her social, financial and health needs even before they were appointed limited guardian and administrator by the VCAT.

83 Ms Bailey described the background to the VCAT hearing as follows. After it was deemed that Ms Evans should not go home, the plaintiffs decided they would care for and support Ms Evans in every way, and they expressed those wishes to the hospital staff and Mr Champ. They advised the plaintiffs to apply to the VCAT for orders appointing them guardian and administrator.

84 Since being appointed, the plaintiffs have submitted the administrator accounts to the VCAT each year and the VCAT has replied each year with a letter confirming that all is in order. The plaintiffs tendered a letter from the VCAT dated 17 February 2015 which confirmed that the ABA (Account by Administrator) for the year 2014 had been examined and was in order and that it was satisfied that Ms Bailey had appropriately managed Ms Evans' financial affairs for the year 2014.

85 Ms Bailey gave evidence similar to Ms Curtain's about Ms Evans' move from the rehabilitation centre to temporary accommodation to Edith Bendall Lodge. She too deposed that the plaintiffs took Ms Evans to their homes for short stays on a regular basis. Ms Bailey said Ms Evans is very close to the plaintiffs.

86 Ms Bailey said she spent a month cleaning out Ms Evans' unit before selling it. She described Ms Evans as a hoarder. Ms Bailey said there were no family photos displayed in the unit, only posters of Bing Crosby and that Ms Evans is a member of the Bing Crosby Society.

87 Ms Bailey said that from an early stage in her friendship with Ms Evans, she would come home from work and call Ms Evans, or Ms Evans would call Ms Bailey. They talked for hours.

88 Before Ms Evans was placed into care, Ms Bailey did most of her laundry. The plaintiffs bought a microwave for Ms Evans so she could heat the meals the plaintiffs made for her. After Ms Evans was placed into care, they continued to see or contact Ms Evans on a daily basis.

89 Ms Bailey said that Edith Bendall Lodge is very close to her home, and that she visits Ms Evans several times each week. She regularly supports Ms Evans at meal times, and on most occasions, she hand feeds meals to Ms Evans. Ms Bailey continues to assist with Ms Evans' washing.

90 Ms Bailey said that her husband and her mother also have close relationships with Ms Evans.

91 The plaintiffs both deposed to their love and support towards Ms Evans, which they say has not changed since Ms Evans went into care. Both plaintiffs talk of Ms Evans being part of their families. They depose that for Ms Evans' 90th birthday last year, the plaintiffs' families held a celebration at the Pascoe Vale Hotel. Ms Curtain said that approximately 40 people were there. Ms Bailey said she is not aware of Mrs Richardson or her children making any attempt to contact Ms Evans on her 90th birthday.

92 Mr Hughes met with Ms Evans on 17, 21, 24 and 30 April 2015 at Edith Bendall Lodge. His first affidavit is sworn on 24 April 2015 and it deals with the first three of his meetings with Ms Evans. His second affidavit is sworn on 1 May 2015 and it deals with his final meeting with her.

93 At his first meeting with Ms Evans, Ms Weston, a staff member at the Lodge, sat in on the meeting in case Ms Evans did not wish to speak with Mr Hughes. The meeting lasted 20 minutes.

94 Mr Hughes said at the first meeting he informed Ms Evans there was an application by the plaintiffs to the Court for a will to be made for her and that he had been appointed to represent her. When asked what assets she had Ms Evans said none. When asked whether there was anyone whom she would like to benefit if she did have assets, Ms Evans said ''Claire''. Mr Hughes took that to mean Ms Bailey.

95 Ms Evans told Mr Hughes that she did not have any relatives, including siblings, and that she did not have any nephews or nieces.

96 When asked what a 'will' was, Ms Evans said it was how much money one has. Mr Hughes asked what else a will is for, but Ms Evans was unable to explain the purpose or effect of a will.

97 Mr Hughes then informed Ms Evans that the application before the Court was being made by the plaintiffs. He asked whether Ms Evans had ever said to Claire that she, Ms Evans, would give her assets to Claire. Ms Evans said she could not recall saying that.

98 When asked who visited her Ms Evans said all her friends. Ms Weston asked whether Ms Evans remembered Claire's sister as Libby and Ms Evans said yes. Ms Evans could not recall the name of Claire's husband.

99 Ms Evans knew that she had a bank account with National Australia Bank, but she did not know how much was in the account and she said she would not be caring about it.

100 Ms Evans did not know what medicines were being given to her.

101 Mr Hughes asked Ms Evans if she knew Lynette Whitely ('Lynne'), Michael Richardson or Leslie Savage. She said she did not see Lynne anymore, did not see Michael and would not know him if she fell over him, and did not see Leslie.

102 Mr Hughes asked Ms Evans again whether she wanted anyone to have her assets after her passing, and if so, who would that be. Ms Evans said Claire. Mr Hughes asked how long she had known Claire and Ms Evans said years. When asked how she met Claire, Ms Evans said at the football, and that ''we (Collingwood supporters) stick together''. Mr Hughes asked whether Claire had been paying any of her bills and Ms Evans said that was never mentioned to her.

103 At the conclusion of the meeting Mr Hughes asked again if she were to give her assets to anyone who would that be. Ms Evans said she would give them to Claire.

104 Ms Weston was also in attendance at the second meeting, which took place on 21 April 2015. Mr Hughes asked Ms Evans if she remembered him from their previous meeting, which occurred four days earlier. Ms Evans said no. Mr Hughes then explained that he was appointed by the Court to find out what her intentions would be if she made a will.

105 Mr Hughes asked Ms Evans if she knew Lynne, and Ms Evans said yes. Mr Hughes asked what their relationship was and Ms Evans said that Lynne is her niece. Mr Hughes asked whether Ms Evans knew Michael and she said no. Mr Hughes asked Ms Evans if she knew Leslie and she said yes. When asked what their relationship was Ms Evans said Leslie is her niece. Mr Hughes asked Ms Evans whether she knew Elizabeth and she said no. He asked whether she knew Claire and Ms Evans said yes.

106 When asked whether she knew where each of those people lived, Ms Evans said no to Lynne, Michael and Leslie. She said Claire lived in Hawthorn and Elizabeth lived in Hawthorn. She also said she was not sure where Elizabeth lived.

107 When asked whether she had any assets Ms Evans said no. When asked whether she had any money in the bank she said yes. When asked to whom she would like to give that money after her death, Ms Evans said Claire. When asked why, Ms Evans said she was a good friend.

108 Mr Hughes then asked whether Mr Evans would give any money to Lynne and Ms Evans said no as they have enough themselves. When asked the same about Michael, Ms Evans said no. When asked the same about Leslie, Ms Evans said no and said that they would waste it. When asked whether she would give any money to Elizabeth, Ms Evans said no.

109 Mr Hughes asked Ms Evans whether she had ever told Lynne, Michael and Leslie that they were to be given her money after her death and she said no. Mr Hughes asked whether Ms Evans had ever told Claire that she was giving money to her after her death and Ms Evans said yes. When asked why she wanted to benefit Claire, Ms Evans said it was because Claire is a nice human being. Mr Hughes asked Ms Evans if she had ever told Elizabeth that she was giving money to her and Ms Evans said no.

110 Mr Hughes asked who visited her and Ms Evans said all her friends visit her regularly, but she did not name specific people. Finally, he asked whether she was taken out to have coffee and Ms Evans said she does not go out.

111 Mr Hughes' third meeting with Ms Evans occurred on 24 April 2015. Ms Weston also attended.

112 Mr Hughes asked whether Ms Evans remembered him and she said yes. When asked whether she knew his name she said no. Mr Hughes explained that he was seeing her because the Court was to determine who should be given her money.

113 Mr Hughes asked if Ms Evans saw Lynne and she replied not very often and Lynne does not 'come here'. Ms Evans also said Lynne lives in Mansfield. When asked how she gets on with Lynne Ms Evans said ''good''.

114 Mr Hughes then asked who Ms Evans would give her money to, and she replied Claire. He asked whether Ms Evans would give some money to Lynne or Leslie and she said no. Mr Hughes asked if Ms Evans knew Libby and she said yes, she sees her quite often. Mr Hughes asked if Ms Evans would like Libby to share in her money and she said no. Ms Evans then said that Libby's father-in-law gives Libby money. Mr Hughes asked whether Ms Evans knew the name of the father-in-law, and she said no. When asked whether she knew Mr Hughes' name, she said no.

Mr Hughes' conclusions from his three meetings with Ms Evans

115 Based on his observations during these meetings, Mr Hughes deposed that he considered that Ms Evans lacks testamentary capacity, because she could not recall or understand the nature or extent of her property even in general terms, save for a bank account, the balance of which she could not recall. Mr Hughes deposed that Ms Evans would not understand the nature and extent of those who might reasonably be thought to have a claim on her estate. Further, she did not show any ability to evaluate and discriminate the respective strengths of the claims of such persons. He said that her mind and intent would not accompany her physical act when signing a will.

116 Mr Hughes deposed that, in his opinion, Ms Evans' likely intentions would be to give her estate to Ms Bailey, however, given Ms Evans' very limited capacity, he was not in a position to conclude that there are no other persons whom Ms Evans may have wished to benefit if she had testamentary capacity.

117 In his affidavit sworn on 1 May 2015 Mr Hughes deposed to his fourth and final meeting with Ms Evans, which lasted approximately 15 minutes. He met with Ms Evans on 30 April 2015 in order to ask her about Mrs Richardson, about whom he had not asked Ms Evans in the previous three meetings.

118 At the final meeting, Mr Hughes asked Ms Evans if she remembered him and Ms Evans said she did. He asked if Ms Evans knew his name, and she said no. When asked whether she remembered Mr Hughes' previous visits she said she did, but when asked what he was there for she only said 'to do that'. Mr Hughes asked what 'that' meant and Ms Evans said again 'to do that'.

119 Mr Hughes explained again that the plaintiffs were applying to the Court for a will under which they would be the beneficiaries. He explained that the defendant was also involved. When asked if she knew Claire, Ms Evans said yes, and when asked if she knew Libby she also said yes. When asked if she knew Mrs Richardson, Ms Evans said yes.

120 Mr Hughes asked Ms Evans if she had seen Mrs Richardson, and Ms Evans said she had not as the defendant lives up in Mansfield. Mr Hughes asked how long it had been since Ms Evans last saw Mrs Richardson, and Ms Evans said 12 months, easily. He asked if Mrs Richardson was a relation of hers, and Ms Evans said no, but when asked whether Mrs Richardson was her sister, mother or any other relation, Ms Evans said Mrs Richardson was her mother. Mr Hughes asked if Mrs Richardson was of a similar age to herself and Ms Evans said yes. Mr Hughes said it was odd that Mrs Richardson would be her mother, given the similarity in age. He asked again whether Mrs Richardson was a relation, and Ms Evans said she was just a friend. Mr Hughes asked Ms Evans if she had a brother and she said no.

121 When asked if she had any money, Ms Evans said no. When asked if she did have money would she give some to Claire, Ms Evans said yes. She also said yes when asked the same question in relation to Libby. When asked if she would give any money to Mrs Richardson, Ms Evans said no.

122 Mr Hughes next asked whether Ms Evans knew Lynne and she said yes. When asked if she was related Ms Evans said yes but 'I haven't got a clue'.

123 Ms Evans was asked whether she went to school with Mrs Richardson. Ms Evans said yes. Mr Hughes asked if Ms Evans remembered doing anything like playing with Mrs Richardson or doing anything together when they were younger, and Ms Evans said no. When asked whether the defendant had worked when she was younger, Ms Evans said yes, she had, at Mansfield.

124 Mr Hughes asked if Ms Evans had ever been a bridesmaid, including for Mrs Richardson, and Ms Evans said no, she had no wish of that.

125 When asked how long she had known the plaintiffs, Ms Evans said years. When asked if she had seen Lynne, Michael and Leslie, she said she had not seen them of late.

126 Mr Hughes asked Ms Evans if she had money would she give it to Claire, and she said yes. In relation to Mrs Richardson, Lynne, Michael, and Libby, she said no.[29]

127 Mr Hughes asked Ms Evans if she recalled saying to Mrs Richardson that she would not make a will, and Ms Evans said no. When asked if she had any questions, Ms Evans said no. When asked if she could remember his name, Ms Evans said no. Finally, Mr Hughes asked Ms Evans if she knew the plaintiffs' mother, and she said yes and that she had a photo of her.

128 At the hearing on 13 May 2013, Mr Hughes said he was 'comfortable in the knowledge that she didn't have testamentary capacity'. He said Ms Evans did not know that she had any assets.

129 He described Ms Evans as a frail lady who needed assistance from the carer when walking. He also described her as a gentile lady. He said Ms Evans was ''very much on the ball'' when Collingwood Football Club was mentioned. When the Court suggested to Mr Hughes that if Ms Evans had capacity, she might have left something in her will to Collingwood Football Club, Mr Hughes said he did not get that feeling even though she was an avid fan of Collingwood.

130 The Court informed counsel for the plaintiffs that in light of Mr Hughes' evidence, it was not necessary for him to make any submissions on the testamentary capacity of Ms Evans, being the first s 21B matter.

131 As to the second s 21B matter, counsel for the plaintiff referred to what the plaintiffs have done for Ms Evans over the last eight years, as explained in their affidavits. Counsel said that over the last eight or nine years, a considerable period, the plaintiffs have been a constant factor in Ms Evans' life. He posed the question, if Ms Evans had capacity, what would she do today? Would she leave something or everything to her niece, with whom she has essentially lost contact? Or would she leave her estate to two people whom she befriended and who have been consistent friends for the last eight or nine years? Counsel for the plaintiff emphasised that those who could have opposed the application have decided not to oppose it, and there is no one else likely to make such an application. He said there are no other deserving beneficiaries.

132 Counsel for the plaintiff submitted that there is some evidence of Ms Evans' testamentary intentions. He relied on Ms Curtain's first affidavit and Mr Hughes' first affidavit. That evidence, he said, establishes on the balance of probabilities that Ms Evans wanted to benefit Ms Bailey. Counsel argued that Ms Evans has been consistent in saying that she wants Ms Bailey to receive her estate. Whether absolutely or partially he would not say. He said that Ms Evans was equally consistent in saying that she did not want to leave anything to Mrs Richardson.

133 Counsel for the plaintiff submitted that while Ms Evans and Mrs Richardson may have had a good family connection when they were growing up and possibly even into early adulthood, they went their separate ways, as people do. As people drift apart, they no longer 'fall into the line of fire as being people to whom the deceased, or the testator, would owe a natural duty to provide'. Over the last eight years, since the plaintiffs have been involved with Ms Evans, the contact between Ms Evans and Mrs Richardson has been very limited. He said the Court should not look at the reason for any estrangement between Ms Evans and Mrs Richardson. Rather, the court should look objectively at what the state of the relationship is. Finally in relation to Mrs Richardson, counsel for the plaintiff noted that if Mrs Richardson predeceases Ms Evans, and there is an intestacy, Ms Evans' estate will pass to three undeserving beneficiaries being Mrs Richardson's three children.

134 Counsel for the plaintiff also pointed to the lack of evidence of any ongoing or historical connection between Ms Evans and any charity. He submitted that often where there is a charity involved, there is a history of donations.

135 As to the Collingwood Football Club, Mr Hughes' evidence was that Ms Evans was an avid fan in terms of watching the football and barracking for Collingwood to win, no more and no less. Counsel for the plaintiff said that if Ms Evans were disposed to benefit Collingwood, she would have made a will previously leaving something to Collingwood. Counsel for the plaintiff said he submitted that the Court could comfortably draw the conclusion that Ms Evans has no testamentary intention with respect to charity.

136 In my view, not much weight on counsel's argument that if she were so disposed Ms Evans could have made a will leaving something to Collingwood. The same could be said about making a will to leave something to the plaintiffs.

137 As to the third s 21B matter, counsel for the plaintiff submitted that it is appropriate in the circumstances to make the statutory will as contended for by the plaintiffs, for two reasons.

138 First, he said that there is no evidence that Ms Evans has ever made a will. The plaintiffs made enquiries of Robinson Gill Lawyers, the solicitors who acted for Ms Evans when she bought the unit that the plaintiffs assisted Ms Evans to sell. Those enquiries did not turn up any will. As there has never been a will, there is no template from which to work. This means the plaintiffs do not have the obstacle of overcoming previous wills, and they are therefore starting with a blank sheet of paper.

139 Second, he said that Ms Evans never married and does not have any children. There is 'no-one who would normally fall within her bounty'.

140 Counsel for the plaintiff also made submissions on how the Court should deal with the fact that the plaintiffs are self-interested. As I indicated at the hearing, the plaintiffs have a vested interest in making this application, and without a statutory will, they would not receive any of Ms Evans' estate (putting the agreement aside).

141 Counsel for the plaintiff relied on Monger v Taylor[30] to illustrate that it is not uncommon for somebody in the position of the plaintiffs (administrators) to make a s 21 application. Counsel submitted that based on the circumstances that the plaintiffs were appointed administrators by the VCAT, their appointments were renewed, there have been no issues with their accounts, and there is no one else who could make the s 21 application or who seems interested enough to make the application, the question of self-interest fades away.

142 Finally, counsel for the plaintiffs made submissions on how the Court should deal with the fact that the parties have reached an agreement outside the Court. He said that in Monger v Taylor the parties had reached an agreement, and the application for a statutory will was a joint one. He said that in this case the application is not a joint one, but the proceeding has nonetheless been compromised. Counsel for the plaintiffs submitted that while weight is usually given to any compromise reached by interested parties, the ultimate decision rests with the Court, which must still be satisfied in relation to the three matters in s 21B of the Act.

143 Counsel for the plaintiffs submitted that the fact that the parties have reached an agreement is something the Court can take into account, just like the Court can take into account the age of Ms Evans and the defendant, and the relative familial connection between Ms Evans and Mrs Richardson as aunt and niece.

144 Before authorising the proposed will, the Court must be satisfied that Ms Evans does not have testamentary capacity. 'Testamentary capacity' is not defined in the Act. For a person to have testamentary capacity, he or she must: have sufficient mental capacity to comprehend the nature and effects of a will; be able to realise the extent and character of his or her estate; and be able to weigh the claims that may be made on his or her estate.[31]

145 There are three medical reports relied upon by the plaintiffs in respect of Ms Evans.

146 The first is a report from Dr Yohanes Ariathianto, Aged Care & General Physician, dated 24 September 2014. Ms Evans was referred to Dr Ariathianto for a comprehensive geriatric assessment with particular focus on cognitive and capacity assessment. Ms Curtain attended the consultation.

147 Dr Ariathianto said that Ms Evans does not realise that she has been living in aged care for the last two or three years. She did not know her medical history or that she was taking any medication, and she did not recognise that she has cognitive impairment.

148 Dr Ariathianto reported that Ms Evans does not understand the concept of a power of attorney and will, and was unable to describe her assets. He said she could not recall that the plaintiffs were appointed as guardians and administrator, and was unable to recall Ms Bailey's name.

149 When asked who she would name if she were to make a will, Ms Evans could not answer. When asked who she would like to make decisions on her behalf, Ms Evans said she would trust Ms Curtain to do so.

150 On formal cognitive testing Ms Evans scored 5/30 on a RUDAS Test. Dr Ariathianto's overall assessment was that Ms Evans has severe dementia with a likely origin of Alzheimer's disease. He did not believe Ms Evans has any capacity in making a lifestyle, medical or financial decision. He said he believed that Ms Evans does not have capacity to make a will.

151 The second report is a Mini-Mental State Examination report dated 21 May 2013. Ms Evans scored 15.5 out of 30, placing her in the 'Severe cognitive impairment' range.

152 The third report is a discharge summary from the Peter James Centre dated 13 September 2012 and prepared by Dr Jane Maxwell.

153 The discharge summary recorded that Ms Evans was being transferred to Viva Care, a nursing home. It said that she was admitted to the rehabilitation centre on 28 August 2012 following admission to Box Hill Hospital for a fall on 4 July 2012. The fall was complicated by pneumonia and mild rhabdomyolysis. The discharge summary records that the principal diagnosis at Box Hill Hospital included cognitive decline and delirium.

154 A confusion assessment conducted at the rehabilitation centre showed that Ms Evans seemed to have delirium with fluctuating behaviours and disorganised thinking. A neuropsychologist assessment reported that Ms Evans was unable to make reasoned and informed decisions, and was very delirious.

155 Finally, Mr Hughes considered that Ms Evans lacks testamentary capacity.

156 In relation s 21B, I am satisfied that Ms Evans lacks testamentary capacity and she will not regain testamentary capacity. She is unable to explain the purpose and effect of a will, and she is unaware of the extent of her assets. She is only aware that she has money in her bank account.

157 The second matter of which the Court must be satisfied is that the proposed will reflects what Ms Evans' intentions would be likely to be, or what the intentions of Ms Evans might reasonably be expected to be, if Ms Evans had testamentary capacity.

158 The test is not whether the proposed will would be preferable to the result on an intestacy, or preferable to an existing will. The Court does not engage in an exercise of comparing the proposed will to what will happen if the Court declines to exercise its s 21 jurisdiction, and deciding which alternative the incapacitated person would prefer.

159 In this case, I am satisfied that if Ms Evans had testamentary capacity and were required to choose between the proposed will and intestacy, she would choose the proposed will. That however, is not relevant.

160 The Court must look at the proposed will and decide if it reflects the incapacitated person's likely intentions or what his or her intentions might reasonably be expected to be. The focus is on the proposed will, not the consequences of the s 21 application failing.

161 The first limb of s 21B(b) focuses on what will Ms Evans would be likely to make, if she had testamentary capacity.

162 Ms Evans has never made a will, so there is no yardstick as to what her testamentary intentions were when she had capacity. There is no other evidence of what her testamentary intentions were when she did have capacity. Indeed, it is not clear when Ms Evans did have testamentary capacity.

163 I place little weight on Ms Curtain's self-serving evidence that Ms Evans told the plaintiffs on numerous occasions that she wanted to leave her estate to the plaintiffs. Even if I were satisfied that Ms Evans, in fact, said that to the plaintiffs, I would not be inclined to place too much weight on that evidence. Testators may say such things to people for a variety of reasons, but not have any intention of doing what they say.

164 Further, Ms Evans' answers when asked whether she had ever told the plaintiffs that she wanted to leave her estate to them, were inconsistent. Ms Evans answered consistently to Mr Hughes that she would give her assets to Ms Bailey, if she had any. However, her answers in respect of Ms Curtain were inconsistent. I note that Mr Hughes at times referred to Ms Curtain as 'Elizabeth', and at other times referred to her as 'Libby'. This may have confused Ms Evans. Some of Mr Hughes' questions may also have led to confusion between Leslie and Libby. I also note that when Ms Curtain attended Ms Evans' consultation with Dr Ariathianto in 2014, Ms Evans said she trusted Ms Curtain to make decisions on her behalf, and she was unable to recall Ms Bailey's name.

165 Ms Evans said Ms Bailey lives in Hawthorn and, at one point, she said she was unsure where Ms Curtain lives. In fact, Ms Curtain lives in Hawthorn and Ms Bailey lives in Pascoe Vale South. It therefore appears as a real possibility that when referring to 'Claire', Ms Evans was sometimes or always referring to Ms Curtain.

166 On one occasion, Ms Evans said she would not leave money to Ms Curtain because her father-in-law gives her money. No evidence was led as to whether this was in fact the case. If this is incorrect, and Ms Evans was answering Mr Hughes' questions on the basis of incorrect information, even less weight can be given to her answers.

167 Ms Evans' answer that she would not leave money to Ms Curtain because her father-in-law gives her money, and her comment that she would not give money to Lynne because 'they' have enough themselves are important for another reason. Some testators will leave an equal amount to beneficiaries, irrespective of their individual needs, because the testator has the same relationship with each beneficiary and/or the testator loves the beneficiaries equally. Other testators will leave different amounts to each beneficiary depending on the individual beneficiary's needs, despite loving each beneficiary equally and/or having the same relationship with each beneficiary. Ms Evans' comment about Ms Curtain's father-in- law suggests she would be the latter kind of testator. Again, there is no evidence as to the plaintiffs' respective financial positions. Such evidence is not required in s 21 applications generally, however, I think that given Ms Evans' answer to Mr Hughes, it was required in this particular application.

168 Given the paucity of evidence before the Court, I cannot be satisfied of what Ms Evans' intentions would be likely to be if she had testamentary capacity.

169 There is a second limb to s 21B(b). That is that the Court may be satisfied that the proposed will reflects what the intentions of Ms Evans might reasonably be expected to be.

170 To borrow the words of Habersberger J,[32] the second limb to s 21B(b) will be met if the Court is satisfied on the balance of probabilities that the proposed will reflects what Ms Evans' intentions would be likely to be, or what her intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what her intentions might be, or that some reasonable people could think that it reflected what might be her intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be her intentions, if she had testamentary capacity.

171 On the evidence before the Court, I am satisfied on the balance of probabilities that some reasonable people could think that there is a fairly good chance that the proposed will reflects what Ms Evans' intentions might be, if she had testamentary capacity.

(a) Ms Evans has been good friends with the plaintiffs for approximately nine years;

(b) the plaintiffs have brought Ms Evans into their families;

(c) the plaintiffs have looked after Ms Evans in various ways since before she went into aged care. They have done above and beyond what would be expected of friends, and above and beyond what some children do for their elderly parents;

(d) Ms Evans' next of kin is her niece, with whom she has not had much contact over the last few years. Aside from Mrs Richardson's family, there are no other living relatives;

(e) Ms Evans said she does not see Mrs Richardson's three children anymore. Her answers were slightly inconsistent in respect of Ms Whitely. Ms Evans said she does not see Ms Whitely anymore and that she does not 'come here', but she also said she does not see Ms Whitely 'very often' and that she gets on well with Ms Whitely.

(f) in her four meetings with Mr Hughes, Ms Evans said consistently that she would give money to Ms Bailey. On one occasion, she said she would give money to Ms Curtain. Not once did she say she would give any money to Mrs Richardson or her three children;

(g) the plaintiffs loved and cared for Ms Evans in the same way;

(h) Ms Evans is possibly labouring under some confusion between the two plaintiffs; and

(i) in late last year, Ms Evans said she trusted Ms Curtain to make decisions on her behalf, but she could not recall Ms Bailey's name.

173 It is a finely balanced matter, but based on that evidence, I consider that some reasonable people could think that there is a fairly good chance that if Ms Evans had testamentary capacity, she might wish to leave her residual estate to the plaintiffs equally.

174 The nature of the second limb of s 21B(b) is that various forms of a proposed will may meet the test. In this case, some reasonable people could think that there is a fairly good chance that if Ms Evans had testamentary capacity, she might wish to leave her residual estate to Ms Bailey only. Further, some reasonable people could think that there is a fairly good chance that if Ms Evans had testamentary capacity, she might wish to leave the majority of her residuary estate to Ms Bailey and the remainder to Ms Curtain. The key, however, is that in this case, some reasonable people could think that there is a fairly good chance that if Ms Evans had testamentary capacity, she might wish to leave her residuary estate to the plaintiffs equally.

175 In my view, it is reasonable in all the circumstances to make orders authorising the making of the proposed will.

176 I am satisfied that Ms Evans has never made a will. I am also satisfied that Mrs Richardson is the person entitled on an intestacy, and that there are no other persons who may have a claim on Ms Evans' estate.

177 As Habersberger J said in Saunders v Pedemont, the likelihood of a Part IV claim is something for the Court to consider, but the Court's task in the s 21 application is different from its task in a Part IV application.[33]

178 In this case, it seems that neither the plaintiffs nor Mrs Richardson would be able to make a claim under Part IV of the Administration and Probate Act 1958. They do not appear to fall within the definition of 'eligible person' in s 90 of that Act, and therefore they would not be able to apply for a family provision order under s 90A(1). A competent solicitor would advise Ms Evans accordingly, and her testamentary intentions would unlikely be affected by any potential Part IV claim.

179 I note that before the Administration and Probate Act 1958 was amended by the Amending Act, Part IV claims could be made by anyone for whom the deceased had responsibility to make provision. The plaintiffs and Mrs Richardson may have sought to make a claim under that regime. Under the new legislation, however, they appear to be unable to make a claim because they are not eligible persons.

180 There is no evidence of any gift for a charitable or other purpose that Ms Evans might reasonably be expected to give or make by will. Mr Hughes' evidence was that Ms Evans was an avid Collingwood fan, but he did not get the feeling that she would make a gift to the football club. There is no evidence of previous gifts to the club. Ms Evans is a member of the Bing Crosby Society, but there is no evidence of any previous gifts to the society. I am not willing to find on the basis of posters and membership to the society that Ms Evans might reasonably be expected to make a gift to the society, if she had testamentary capacity.

181 I am satisfied in relation to each of the three matters in s 21B. The Court's discretionary jurisdiction under s 21(1) is therefore enlivened.

182 I have considered all the relevant matters in the context of the three s 21B matters. There are no further relevant considerations in this matter, and no reasons why the Court should not exercise its discretion to make orders authorising the making of the proposed will.

183 The Court has not been asked to make an order as to costs. The plaintiffs and the defendant have agreed that each party will bear their own costs of and incidental to the proceeding.

184 When deciding what to do about Mr Hughes' costs, regard must be had to the fact that Ms Evans is still alive and should be able to enjoy her assets undiminished by the burden of paying costs.[34] However, I have found Mr Hughes' evidence extremely helpful. At the hearing I indicated a strong view that Mr Hughes' costs ought be paid from Ms Evans' assets. Counsel for both the plaintiffs and Mrs Richardson accepted that, although counsel for the plaintiffs submitted that Mr Hughes' costs might be determined after the case had been decided, but did not press the point.

185 In my view, in the circumstances where the Court has ordered the appointment of Mr Hughes to represent Ms Evans and his evidence has been extremely helpful, I will order that his costs be paid from Ms Evans' assets.

Duties of a practitioner appointed to represent a propositus under s 21 of the Act

186 As mentioned earlier in this judgment, Mr Hughes was concerned as to his ethical position had the application been opposed and he was to be cross-examined on his evidence contained. He informed the Court he was unsuccessful in seeking guidance in this circumstance.

187 Rule 13.4 of the solicitors' Professional Conduct and Practice Rules 2005 (Vic) provides:

13. Independence - Avoidance of personal bias

13.4 A practitioner must not unless exceptional circumstances warrant otherwise in the practitioner's considered opinion:

13.4.1 appear for a client at any hearing, or

13.4.2 continue to act for a client,

in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court.

188 A purpose of Rule 13 is to prevent a practitioner from being in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence. The role of a lawyer as a witness has been succinctly dealt with in the important article written in 1998 by Ipp J (as he then was) 'Lawyers' Duties to the Court' article when wrote of the 'lawyer as a witness' in the following terms:

It is undesirable for a lawyer to appear as a witness in the same case as he is instructing solicitor (and, a fortiori, counsel). Similarly, it is undesirable that, when an affidavit has been filed by a lawyer in support of an application by a client, the lawyer appear as solicitor or counsel. The reason for this is that the lawyer would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence...

Where a lawyer is guilty of a conflict of interest in representing a client he will have committed a breach of duty. That duty is usually expressed as a fiduciary obligation arising out of the relationship between solicitor and client. But there is a similar duty owed by a lawyer to the court (as well as an ethical duty). The duty to the court arises from the court's concern that it should have the assistance of independent legal representation for the litigating parties. The integrity of the adversarial system is dependent on lawyers acting with perfect good faith, untainted by divided loyalties of any kind. This is central to the preservation of public confidence in the administration of justice. [35]

189 Mr Hughes' appointment by the Court to represent Ms Evans is for the specific purpose of informing the court of the matters set out in s 21B of the Act. It is a special role allowed for under s 21 of the Act. He is not acting for Ms Evans as a client but the purpose behind the Rule informs his position. If his evidence were to become an issue 'material to the determination of any contest of the issues in the proceeding', then it would be appropriate, in my view, for him to seek the determination of the Court as to his position and whether 'exceptional circumstances warrant otherwise' as prescribed by Rule 13.4 above.

190 Subject to any further submissions, the following matters and order will be made:

1. The Court is satisfied that Audrey Evans, the person on whose behalf a will is to be made, does not have testamentary capacity.
2. The Court is satisfied the proposed will reflects what the intentions of Audrey Evans would be likely to be, or what her intentions might reasonably be expected to be, if she had testamentary capacity

1. The Court is satisfied that it is reasonable in all the circumstances to make an order authorising the making of the proposed will for Audrey Evans.

1. The defendant, she being the only person who would be entitled to participate in the distribution of the intestate estate of Audrey Evans, does not oppose these orders.

1. The Court authorises the making of a will, in the terms of the draft will annexed to this order, on behalf of Audrey Evans, she being a person who does not have testamentary capacity.
2. The said will be signed by the Registrar of Probates and sealed with the seal of the Court.
3. The executed will be deposited with the Registrar of Probates pursuant to s 5A of the Administration and Probate Act 1958.
4. There be no order as to the costs of the plaintiffs or the defendant in this proceeding.
5. The costs of Mr David Hughes, as the representative of Audrey Evans, be paid from the assets of Audrey Evans on an indemnity basis.

[1] Monger v Taylor [2000] VSC 304, [49]-[50] (2 August 2000) (Gillard J)

[2] One other application under the new provisions has been made to the Court. Counsel for the plaintiff informed the Court there have been 14 reported cases under the former provisions.

[3] Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), 3.11.

[8] [2012] VSC 574, [9].

[9] [2004] VSCA 112; (2004) 9 VR 495, [11] (Dodds-Streeton AJA, with whom Ormiston and Charles JJA agreed).

[10] Victorian Law Reform Commission, Succession Laws, Report No 26 (2013), 3.35.

[12] Victoria, Parliamentary Debates, Assembly, 18 September 2014, 3444 (Robert Clark, Attorney-General).

[13] [2000] VSC 304.

[14] [2011] VSC 45.

[15] [2012] VSC 574.

[16] [2000] VSC 304, [47]-[48], [64]-[66].

[21] [2011] VSC 45, [10]-[11]. (Citations omitted and emphasis added.)

[23] [2012] VSC 574, [97].

[27] [2004] VSCA 112; (2004) 9 VR 495, [14].

[28] Hill v Hill [2001] VSC 83, [8].

1. [29] Mr Hughes did not ask about Leslie in this conversation. It is possible that given Mr Hughes asked about Lynne and then Michael and then Libby, Ms Evans was thinking of Leslie when she responded in relation to Libby.

[30] [2000] VSC 304.

[31] Veall v Veall [2014] VSC 38, [32] and the cases there cited.

[32] Who borrowed the words of Palmer J in Re Fenwick [2009] NSWSC 530; (2009) 76 NSWLR 22.

[33] [2012] VSC 574, [114]-[115].

[34] Hill v Hill (No 2) [2001] VSC 135, [8].

[35] Ipp J, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63, 92-93.