MARGARET JOY LANGTON BRITTON by next friend THE PUBLIC TRUSTEE -v- BRITTON [2023] WASC 352 (7 September 2023)

1. My reasons for making those Orders are as follows.

1. This is an application under s 40 of the Wills Act 1970 (WA) in which the Public Trustee seeks an alteration of the Original Britton Will.[1]

1. Before I can make an Order in those terms, I must be satisfied under s 40(2) of the Wills Act that the person concerned - Ms Britton - is living and has reached the age of 18 years.
2. The affidavit filed by Hugh Martin Reynoldson made 7 September 2023 (Reynoldson Affidavit) deposes that Ms Britton is alive as at about 10.05 am this morning.[2] However, Ms Britton is, it appears from the evidence before me, in a state of some decline, and so there is an urgency to making of the Orders.[3]
3. I have pronounced the Orders at 2.15 pm this afternoon but, of course, if it transpires that Ms Britton has predeceased the making of those Orders, then the Orders, as I would understand it, would not have any effect.[4]
4. So, I am satisfied of the two matters under s 40(2) of the Wills Act.

Statutory Requirements under the Wills Act

1. By s 41 of the Wills Act, the applicant must furnish a number of matters to the Court unless the Court otherwise allows.
2. It will be most convenient for me to deal with them in turn.
3. Under s 41(1)(a) of the Wills Act, the applicant has furnished a written statement of the nature of the application and the reasons for it.
4. To satisfy s 41(1)(b), the applicant relies on the Conlin Affidavit at [48] and Annexure SWC17, and I am so satisfied.
5. To satisfy the requirements of s 41(1)(c) of the Wills Act, the applicant has furnished the proposed amendment in the Conlin Affidavit at Annexure SWC19 (Proposed Amendments) and has then sought to subsequently amend that at the commencement of today's hearing: that becoming the Amended Britton Will.
6. As to evidence of the wishes of the person concerned pursuant to s 41(1)(d) of the Wills Act: I think they are evidenced by the terms of the Original Britton Will and the Proposed Amendments which do not change the recipients of the gifts. Instead, the Proposed Amendments change the property from which those gifts are to be paid. Namely, instead of the real property itself, they are to be made from the proceeds of the sale of that real property (which settled on 6 December 2019)[5] and so it seems to me that the applicant's wishes are kept faith with by the Proposed Amendments.
7. To satisfy s 41(1)(e) of the Wills Act, the applicant has adduced the evidence in the Conlin Affidavit at [5], [9], and [50], as well as the Reynoldson Affidavit at Annexure HMR31 on page 55 which is a recent report from Ms Britton's nursing home to the effect that she does not have capacity.
8. In light of the evidence Mr Conlin adduces as to previous findings by the State Administrative Tribunal over a number of years,[6] I am satisfied that there is little to no likelihood that Ms Britton will recover testamentary capacity.
9. To satisfy s 41(1)(f) of the Wills Act, the applicant has adduced the Original Britton Will, as well as deposing at [5] and [6] of the Conlin Affidavit that the Public Trustee has been the plenary administrator of Ms Britton's estate since that time.
10. In those circumstances, I am satisfied that the applicant, in the course of acting as plenary administrator in that period of time, has made reasonable enquiry as required.[7]
11. To satisfy s 41(1)(g) of the Wills Act, I note the evidence in the Conlin Affidavit at [15] - [17] as to Ms Britton's personal circumstances, namely that she has never married; has not had (or adopted) any children; does not have a de facto partner; and is not financially maintaining any other person.
12. As to who might take on an intestacy, it appears from the evidence adduced by Mr Conlin that Ms Britton had two siblings, one of whom, Beverley, died on 21 April 2022. The second of whom, Rodney, is still alive and is married to Julie. Rodney and his wife Julie, as evidenced by the Conlin Affidavit at [22], have eight children. It is apparent from the affidavits filed that the applicant has been in communication with Rodney and Julie generally and for the purposes of this Application.[8]
13. It would appear that Rodney, Julie and the eight children may take on an intestacy per s 14(8) of the Administration Act 1903 (WA), and so I consider that the applicant has made reasonable enquiries to satisfy that requirement.[9]
14. The findings I have just made also satisfy the requirements in s 41(1)(h) and (i) of the Wills Act as it appears that Ms Britton was not financially maintaining any other person, and so the applicant has satisfied the reasonable enquiries requirements in those paragraphs.[10]
15. The requirement in s 41(1)(j) of the Wills Act is satisfied in the sense that both the Original Britton Will and the Amended Britton Will make extensive gifts to various charities already,[11] and those gifts will not be disturbed by the alteration I have ordered.[12]

1. Under s 42 of the Wills Act, the Court must refuse an application if it is not satisfied of certain things. The first of those, s 42(1)(a) of the Wills Act, is that Ms Britton is incapable of making a valid will or of altering or revoking her will, as the case may be.
2. I have dealt with this already, but that negative requirement is satisfied by the Conlin Affidavit at [50] and the Reynoldson Affidavit in Annexure HMR31 on page 55.
3. Section 42(1)(b) of the Wills Act is, by reference to the judgment of Chaney J in R v J [2017] WASC 53, a provision solely in Western Australia and is not present in the analogous statutes in other States. The only requirement in s 42(1)(b) of the Wills Act is that Ms Britton could have made the alteration and it seems to me there is no doubt that she could have.
4. The Public Trustee is an obviously appropriate person to make the application, and so there is no difficulty under s 42(1)(c) of the Wills Act.
5. In relation to steps being taken under s 42(1)(d) of the Wills Act, I have evidence from Mr Reynoldson as to the service of the application, albeit not formal service but service by email on each of the potentially affected persons.[13]
6. I am satisfied that they have had an opportunity to be represented in the proceedings if they wished to.[14] That they have not taken up that opportunity is unsurprising given the minimalist alteration which is proposed.
7. In all of the circumstances where the effect of the alteration is to prevent the gift under cl 7 of the Original Britton Will from being adeemed, I consider that it is appropriate that the Court ought make Orders that I have made.

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

[1] Originating Summons dated 30 August 2023 at [1].

[3] Reynoldson Affidavit at [14] - [18].

[4] Wills Act s 40(2)(a).

[6] Conlin Affidavit at SWC-1 and SWC-2.

[7] Conlin Affidavit at [5]-[6] and [24]-[26].

[8] Reynoldson Affidavit at [4] and [8].

[10] Conlin Affidavit at [15] - [17].

[11] Original Britton Will attached to the Conlin Affidavit at SWC-4.

[12] Proposed Amendments to the Original Britton Will attached to the Conlin Affidavit at SWC-19.

[13] Reynoldson Affidavit at [4] - [13]; Affidavit of Service by Cheryl Lorraine Harrison sworn on 6 September 2023.

[14] Reynoldson Affidavit at HMR-1 to HMR-11, HMR-13 to HMR-18, HMR-22, HMR-27, and HMR-28.