KT the guardian of MA -v- MA [2025] WASC 150 (30 April 2025)

1. The plaintiff also filed detailed written submissions in support of the application, which were of significant assistance in determining the application.

1. The defendant (MA) was born in 1941 and is currently 83 years old.[2] She was married to DI for almost 63 years, prior to his death on 21 July 2022. MA and DI had three children: the plaintiff, LI, and TE. Neither MA nor DI were married to anyone else or had any other children.
2. The plaintiff has two children, aged 26 and 22. LI is the father of twins who are 21. One of the twins has Asperger's syndrome and has difficulty in managing money. LI is divorced from the mother of the twins and is engaged to a woman who has two children of her own. TE is separated from his wife. He has a stepson from this marriage but does not have any biological children of his own.
3. In 2011, MA and DI executed reciprocal wills. Under the terms of the 2011 Will, MA left a specific property to the plaintiff, LI, and TE, with the remainder of her estate being left to DI if he survived her. If DI did not survive MA, the remainder of MA's estate was left to the plaintiff, LI, and TE in equal shares. If any of the plaintiff, LI, and TE did not survive MA but had adult children who survived her, these children would take their parent's share in equal proportions.[3]
4. By the Codicil, MA varied the terms of the 2011 Will by changing the executor and trustee of her estate to be DI (if he survived her), alternatively the plaintiff (if he did not survive her).[4]
5. In late 2021 and early 2022, MA and DI expressed concerns about their existing wills and wanted to ensure that only their bloodline relatives benefitted from their estates. As a consequence, they discussed succession planning with Ms Bruce, including amending their wills.[5] However, before they were able to execute new wills, both MA and DI contracted COVID‑19. DI died before any amendments to their wills could be made.[6]
6. On 7 September 2022, Ms Bruce met with MA and formed the view that MA had lost testamentary capacity.[7]
7. MA is currently a resident in an aged care facility[8] and has been diagnosed with dementia.[9] As a consequence, MA is unable to execute a new will and cannot, in the absence of orders from the court, give effect to the wishes she had previously expressed in relation to the distribution of her estate.

1. The proposed statutory will provides for MA to make two $500 charitable bequests with the remainder of her estate to be left in equal shares to three discretionary testamentary trusts for the respective benefit of each of the plaintiff, LI, and TE (and their children and grandchildren, if any). It proposes that the plaintiff be appointed as executor or, if she is unable or unwilling to act, then her son.[10]
2. The evidence of Ms Bruce is that the charitable bequests are consistent with MA's statements to her prior to losing capacity. Ms Bruce also considers that the incorporation of testamentary trusts would address MA's expressed desire for her estate to go to her blood relatives, would make provision for her grandchildren, and would address concerns previously expressed by MA regarding certain family members' difficulties with handling money.[11]

1. Section 40 of the Wills Act gives the court jurisdiction to make an order, on an application made by any person, authorising the making of a statutory will in specific terms that are approved by the court. Pursuant to s 40(2) of the Wills Act, an order cannot be made unless the person is living and is over 18 years old.
2. Section 41 of the Wills Act sets out the evidence that is required to be furnished on such an application. It is clear from this section that the relevant considerations for the court in considering whether to authorise the proposed will include the reasons for the application, the extent of the estate, the contents of previous wills, the applicant's wishes (to the extent there is evidence of this), the effect of the proposed will on beneficiaries under a previous will or an intestacy, and the likelihood of claims being made under the Family Provision Act 1972 (WA).[12]
3. The criteria that the court must consider on an application under s 40 of the Wills Act are set out in s 42. Pursuant to s 42(1), the court must refuse the application if it is not satisfied that:

(a) the person concerned is incapable of making a valid will or of altering or revoking the person's will, as the case may be;

(b) the suggested will, alteration or revocation, or that will, alteration or revocation as revised under s 43(1)(b), is one which could be made by the person concerned if the person were not lacking testamentary capacity;

(c) the applicant is an appropriate person to make the application; and

(d) adequate steps have been taken to allow all persons with a legitimate interest in the application, including persons who have reason to expect any benefit from the estate of the person concerned, to be represented in the proceedings.

1. A person is capable (that is, has testamentary capacity) to make a valid will if they understand the nature of the will and its effects, the extent of property to which they are disposing, and the claims to their estate of which they ought to consider and give effect.[13] The best evidence of testamentary capacity is 'that of a specialist professional, for example, a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness rules of court'.[14]
2. As noted by Chaney J in R v J, there is an important distinction between the requirement in s 42(1)(b) of the Wills Act and the equivalent statutory provisions in the other states, namely:[15]

[T]he absence of any reference in s 42 to the likely intentions of the incapable person or any reference to the will being one that would have been, or would be reasonably likely to have been, made by the incapable person. All that s 42 requires in this regard is that the will be one which could be made by the incapable person.

Should the court make orders for the proposed statutory will?

1. On the evidence before the court, I accept and find that MA is over 18 years old and is alive. As a consequence, I accept the court has jurisdiction to make the orders sought.

1. The plaintiff has adduced a medical report of Dr Nick De Felice, a consultant psychiatrist who examined MA on 27 September 2024.[16] Dr De Felice has assessed MA as having dementia of 'moderate to marked' severity. His opinion is that MA does not have testamentary capacity.
2. Based on this evidence, I accept and find that MA is currently incapable of making a valid will.

Is the will one that the defendant could have made if not lacking testamentary capacity?

1. I accept that the proposed statutory will is one that could be made by MA if she was not lacking testamentary capacity.
2. There can be no dispute that it is open to a person to make charitable bequests and to create testamentary trusts to facilitate generational wealth management in their will. In this case, I am also satisfied that the proposed will gives effect to the defendant's intentions, as communicated to Ms Bruce in late 2021 and early 2022.

Is the plaintiff an appropriate person to make the application?

1. I am satisfied that the plaintiff is an appropriate person to make this application, as she is the sole enduring guardian of the defendant and the named executor under the 2011 Will.

Have persons with a legitimate interest in the application been given notice of the application?

1. Consistent with PD 9.3.1(3) of the Supreme Court Consolidated Practice Directions 2009 (WA), the application has been served on MA. When the matter came before the court for directions on 16 March 2025, no orders were made to give notice of the application to any other party.
2. The evidence before the court is that the plaintiff's siblings (that is, LI and TE) are aware of the application and consent to the court making the orders sought.[17]

Has the plaintiff furnished the evidence required under s 41 of the Wills Act?

1. As set out in more detail below, I accept that the plaintiff has satisfied the evidentiary requirements set out in s 41 of the Wills Act.

Nature of application and reasons for it (s 41(1)(a))

1. The reasons for the application are set out in the affidavit of the plaintiff as summarised above at [11].

Nature and value of MA's assets and liabilities (s 41(1)(b))

1. Following the death of DI, the value of MA's estate has significantly increased as she was the sole beneficiary of his estate. As at 13 November 2024, the value of MA's estate is estimated to be $5,094,998.87, subject to payments that are due to be made for taxation obligations.[18]

1. A draft of the proposed will is annexed to the plaintiff's affidavit.[19]

1. The plaintiff has adduced evidence of MA's wishes as to the changes she wished to make to the 2011 Will and the reasons for that. Ms Bruce, MA's former solicitor, has considered the proposed will. Her evidence, which I accept, is that the proposed will is consistent with MA's wishes.

Likelihood of MA having testamentary capacity at some later time (s 41(1)(e))

1. I accept, on the evidence before the court, that as a consequence of the progression of MA's dementia, she will not regain testamentary capacity.[20]

1. The plaintiff has adduced evidence of MA's current will.[21]

Enquiries concerning the interests of any person who would be entitled to receive any part of the estate under a previous will or under intestacy (s 41(1)(g))

1. Under the 2011 Will, the entirety of MA's estate was left to her three children (on the assumption that all survive her). This is the same position that would occur on intestacy.
2. Apart from two small charitable gifts, this position is not substantially altered in the proposed will. The primary change is that the bequests will be made to testamentary discretionary trusts to be established for the benefit of each of the children, rather than being left to the children directly.

Evidence of any facts known in relation to the likelihood of claims under the Family Provision Act 1972 (WA) (s 41(1)(h))

1. On the evidence before the court, I accept that it is unlikely that there will be an application under the Family Provision Act 1972 (WA).

Circumstances of persons for whom MA might reasonably be expected to make provision under her will (s 41(1)(i))

1. I accept that there are no persons, other than her children (the plaintiff, LI, and TE), who might reasonably expect to receive a provision from MA's estate.

References to gifts to charitable or other bodies which MA might reasonably be expected to make (s 41(1)(j))

1. In her meetings with Ms Bruce, MA expressed a wish to make charitable gifts of $500 to two organisations: UNICEF and the Asylum Seeker Resource Centre.[22] These gifts have been included in the proposed will.

1. The plaintiff has discussed the proposed will with her siblings and son (who is named as the substitute executor under the proposed will). Both LI and TE consent to the orders sought.[23] The plaintiff's son has agreed to being appointed as executor if the plaintiff is unable or unwilling to assume the role at the relevant time.[24]

Should the court approve the proposed statutory will?

1. Having considered all of the above matters, for the following reasons, I consider that the court should approve the plaintiff's application to make the proposed statutory will.
2. First, the proposed statutory will is consistent with the discussions that MA had with her solicitor, Ms Bruce, prior to losing testamentary capacity.
3. Second, the proposed distribution is broadly consistent with the entitlements that each of MA's children would have had under the 2011 Will. The differences between the 2011 Will and the proposed statutory will reflect three matters. First, small bequests to charitable organisations. Second, MA's stated desire that only bloodline relatives inherit her estate. Third, MA's concerns regarding issues that various family members experience managing money. In my view, the incorporation of the small charitable bequests and the discretionary testamentary trusts in the proposed statutory will is appropriate and aligns with the wishes of MA expressed while she retained testamentary capacity.[25]
4. Third, the beneficiaries under the 2011 Will consent to the making of the proposed statutory will.

1. For these reasons, it was and is my view that it is appropriate to make orders for the revocation of the 2011 Will and the Codicil and the making of a new statutory will in the terms proposed by the plaintiff.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of plaintiff filed 17 January 2025, 'KTM-1'.

[2] Affidavit of plaintiff filed 17 January 2025 [4].

[3] Affidavit of plaintiff filed 17 January 2025, 'KTM-3'.

[4] Affidavit of plaintiff filed 17 January 2025, 'KTM-5'.

[5] Affidavit of Sally Elizabeth Bruce filed 17 January 2025 [5] - [7], [11].

[6] Affidavit of plaintiff filed 17 January 2025 [6].

[7] Affidavit of Sally Elizabeth Bruce filed 17 January 2025 [29].

[8] Affidavit of plaintiff filed 17 January 2025 [8].

[9] Affidavit of plaintiff filed 17 January 2025, 'KTM-8'.

[10] Affidavit of plaintiff filed 17 January 2025, 'KTM-9'.

[11] Affidavit of Sally Elizabeth Bruce filed 17 January 2025 [31].

[12] R v J [2017] WASC 53 [18].

[13] Banks v Goodfellow (1870) LR 5 QB 549.

[14] Re Fenwick [2009] NSWSC 53; (2009) 76 NSWLR 22 [127].

[16] Affidavit of plaintiff filed 17 January 2025, 'KTM-8'.

[17] Affidavit of LI filed 17 January 2025; Affidavit of TE filed 17 January 2025.

[18] Affidavit of plaintiff filed 17 January 2025, 'KTM-6'.

[19] Affidavit of plaintiff filed 17 January 2025, 'KTM-9'.

[20] Affidavit of plaintiff filed 17 January 2025, 'KTM-8'.

[21] Affidavit of plaintiff filed 17 January 2025, 'KTM-3'.

[22] Affidavit of Sally Elizabeth Bruce filed 17 January 2025 [16].

[23] Affidavit of LI filed 17 January 2025; Affidavit of TE filed 17 January 2025.

[24] Affidavit of plaintiff filed 17 January 2025 [54] - [55].

[25] Re Matsis; Charalambous v Charalambous [2012] QSC 349; GAU v GAV [2014] QSC 308; Doughan v Straguszi [2013] QSC 295.