Monger v Taylor [2000] VSC 304

5. It is alleged that Mrs Letitia Anwyn Power ("Mrs Power") lacks testamentary capacity to make a will and an order is sought authorising a will to be made on her behalf.

10. The plaintiff, Desmond Lawrence Monger, resides in Strathmore, is a shop proprietor and Mrs Power's nephew by marriage.

13. The defendant, Mrs Bonnie Mary Lindsay Taylor ("Mrs Taylor") is Mrs Power's sister. If Mrs Taylor survived Mrs Power and the latter left no will, by reason of the intestacy, Mrs Taylor would receive the whole of the estate.

18. The court's jurisdiction to authorise the making of a will (called a "statutory will") in specific terms on behalf of the person lacking testamentary capacity is found in Division 2 of Part 3 of the Wills Act 1997 ("the Act"). Division 2 came into operation on 20 July 1998.

21. Rules of Court have been made concerning applications and are found in Order 17 of Chapter 2. By reason of Rule 17.05(1) an application for leave to make an application for an order under Division 2 is to be made by originating motion supported by affidavit.

24. In the present proceeding Mr Monger through his solicitors issued an originating motion on 28 September 1999 which was returnable before the judge in the Practice Court on 14 October 1999.

27. The motion sought orders that he be granted leave to make the application for an order authorising a will to be made for Mrs Power and an order to that effect in accordance with the terms of a proposed will annexed to the affidavit of Mr Monger. The effect of the proposed will was that the total estate was to go to Mr Monger and his wife, Beverley Anne Monger.

30. Mr Monger's solicitor, Mr Frank Murone, carried out investigations to determine the next of kin of Mrs Power and eventually located the address of Mrs Taylor the sister of Mrs Power. He made contact with her and as a result she engaged a firm of solicitors to act on her behalf.

33. As a result counsel for both Mr Monger and Mrs Taylor agreed on appropriate procedural directions and on the return of the originating motion, Beach J on 14 October 1999 made orders with respect to the future conduct of the proceeding.

36. His Honour ordered that Mrs Taylor be joined as a defendant to the proceeding. Directions were given as to the service of affidavits and he further ordered that a mediation take place.

39. Ultimately a mediation did take place but the proceeding was not at that stage compromised.

42. The legislation requires a two stage procedure.

45. The first stage is an application for leave of the court to make an application for an order authorising a will to be made in specific terms on behalf of a person who does not have testamentary capacity.

48. This is made clear by s.21(2) of the Act which provides -

"(2) Any person may make an application for an order under this section (ie authorisation of the making of a will) if the person has first obtained leave of the court to make the application"."

52. Section 26 sets out the matters of which a court must be satisfied, before application for leave to make an application may be granted.

55. The second stage is, if leave is granted, the hearing of the application for approval of the proposed will by the court.

58. This is made clear by the grant of jurisdiction which is found in s.21(1) which provides -

"(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."

62. Section 29 identifies persons who are entitled to appear on an application for leave.

65. A person who has an interest in the matter may be heard.

68. Section 29 provides -

"Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for leave to apply for an order under s.21 -

(a) the person on whose behalf the will is to be made;

(b) a legal practitioner representing that person;

(c) an attorney appointed by that person under an enduring power of attorney;

(d) any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986;

(e) any other person who has, in the opinion of the court, a genuine interest in the matter."

75. Both Mr Monger and Mrs Taylor have standing. Mr Monger not only has an interest as will be apparent hereafter, but he is the administrator of Mrs Power. The requirement that the person applying for the order must first persuade the court to grant leave, is to provide a screening process to ensure that frivolous baseless claims are not made and in particular a baseless allegation that a person lacks testamentary capacity.

78. In a suitable case the court may hear the application for leave to apply and also hear the actual application at the one hearing. See s.27(2) of the Act.

81. Although there is the two step procedure, costs should be kept to a minimum and the court and the parties should ensure that the procedure adopted gives effect to that objective.

84. It follows that a plaintiff and his or her solicitor should take all steps necessary to identify and locate any person who may have a genuine interest in the application such as beneficiaries under an old will, the person entitled on an intestacy and those who may have a claim on the bounty of the testator or testatrix. That list is not exhaustive.

87. Rule 17.05(3) prescribes what has to be addressed in the affidavit in support.

90. The plaintiff must set out any evidence available to him or her of the matters specified in paragraphs (d) to (j) (inclusive) of s.28 of the Act and if not relevant "state why such matter is not relevant" - see Rule 27.05(3)(d). Matters that have to be addressed are, inter alia, any evidence of the likelihood of an application under Part IV of the Administration and Probate Act 1958, evidence of a person for whom provision might reasonably be expected to be made under the will, who is entitled on an intestacy and questions involving gifts to charity or for other purposes.

93. It follows that the investigation of these matters will usually identify those who may have an interest in the outcome of the application. Rule 17.05(4) provides -

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

97. By identifying and locating such persons steps can be taken prior to the application for leave to apprise those persons of the application, and invite them to attend on the application for leave if they wish to be heard.

100. Plaintiffs and their legal practitioners should identify all those who could possibly have an interest in the proceeding prior to the issue of the motion, refer to them in the affidavit and give them notice prior to the return date of the application for leave to make application, so that if any person wishes to be heard he or she can attend at the first hearing. By adopting that procedure, court appearances can be kept to a minimum.

103. In that regard the plaintiff in the present matter is to be commended for taking that step which meant that appropriate orders for directions were made at the first hearing, the interested party was joined with the result that the hearing could be both the application for leave and the actual application itself, if the court was of the opinion that leave should be granted.

108. The dispute between the parties was not resolved at mediation and after further discussions, Mr Monger and Mrs Taylor, agreed to compromise their differences.

111. Accordingly, a new proposed will was drafted.

114. The estate comprises money in the Bank of Melbourne in a variety of accounts and the total sum is approximately $112,040. The proposed new will divides the estate up between Mr and Mrs Monger and Mrs Taylor providing that the latter survive Mrs Power for a period of 30 clear days from her death.

117. Mrs Taylor is to get $47,000 and the will goes on to provide that if she does not survive for the said period then the moneys are to be held in trust for various nephews and nieces of Mrs Power who are the children of Mrs Taylor.

120. The balance of the estate is to go to Mr and Mrs Monger.

124. The first step for the court is to consider whether leave should be granted. The legislation provides in some detail what the court must consider before making the determination.

127. Section 26 sets out the matters of which the court must be satisfied, before leave is granted. It provides -

"Before granting leave to apply for an order under s.21, the court must be satisfied that -

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

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

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

134. Under s.27 the court on such an application may take into account matters specified under s.28, it may inform itself in any manner it sees fit, and is not bound by the Rules of Evidence.

137. Section 28 states what information is to be given to the court if the court requires it. The opening words of s.28 are -

"In proceedings for the hearing of an application for leave to apply for an order under s.21, the applicant must, if so required by the court, give - " and thereafter are set out what is required.

141. It is noted that the requirement must come from the court. The court has responded to this legislative direction by Rule 17.05(3) of Chapter 2 of the Rules of Court.

"(3) Without limiting paragraph (2) the affidavit shall - " and thereafter the matters required by s.28 are then specified. The plaintiff must address the matters in the affidavit in support.

148. I have set out above the matters that must be considered on the application for leave by reason of s.26 and in summary s.28 requires information concerning the nature of the application and the reasons for it, the size and character of the estate, a draft of the proposed will, any evidence available as to the wishes of the proposed testator or testatrix, any evidence suggesting the person could regain testamentary capacity, evidence of previous wills, evidence of the likelihood of an application under Part 4 of the Administration and Probate Act 1958, evidence of the circumstances of any person for whom provision might reasonably be expected to be made under the will, evidence as to persons who would be entitled on an intestacy, evidence of any gift for a charitable or other purpose that the testator or testatrix might reasonably be expected to give and any other evidence which is relevant to the application.

151. If the court is of the opinion that leave should be granted the legislation gives less guidance to the court as to its approach on the hearing of the application.

154. The jurisdiction is found in s.21(1) which gives the court the power to make an order authorising a will to be made in specific terms approved by the court. It is noted under s.21(3) that an order cannot be made on behalf of a person who is deceased at the time the order is made.

157. What guidance the legislature gives is found in s.22 which provides -

"In considering an application for an order under s.21 -

(a) the court may have regard to any information given to the court in support of an application for leave under s.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."

164. 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.

167. 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.

170. In the present matter, the disputing parties have compromised their differences and accordingly the application is for all practical purposes, a joint one.

173. But 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.

176. The first step then is for the court to consider whether leave should be granted and taking into account the way the present matter has been conducted by the parties and the terms of their compromise no doubt if leave was granted then the making of an order authorising the will to be made in the terms put forward would be a formality.

179. There are three questions to be considered on an application for leave, as prescribed by s.26.

182. The first matter for consideration is whether the proposed testatrix, Mrs Power, "does not have testamentary capacity"?

185. Once that hurdle is passed then in my opinion the court in giving effect to the provisions of s.26(b) and (c), is obliged to place itself in the shoes of the proposed testatrix, Mrs Power and determine as at today her likely intentions if she was of testamentary capacity and taking into account all other circumstances consider whether it is reasonable to authorise the making of the will. In determining the latter question the court would consider these matters specified in s.28 including any other relevant matters placed before the court.

188. The third question opens up consideration of all relevant circumstances including those stated in s.28.

191. Parliament in England many years ago empowered the High Court to make a statutory will. The power was first given in 1969.

194. By reason of the Mental Health Act 1983 (UK) a judge has jurisdiction to make a will for a person "if he were not mentally disordered" and in exercising that jurisdiction the court is bound to take into account the requirements of the patient and, inter alia, the interests of creditors. The legislation gives very little guidance to the court save that the jurisdiction shall not be exercised "unless the judge has reason to believe that the patient is incapable of making a valid will for himself."

197. The words emphasised were inserted in that way to avoid any lengthy disputes concerning capacity to make a will.

200. In the case of In re D(J) (1982) Ch 237 Sir Robert Megarry V-C considered the jurisdiction and stated what he thought were the relevant matters to take into account without in any way claiming that his list of relevant matters was exhaustive.

"The first of the principles or factors which I think it is possible to discern is that it is to be assumed that the patient is having a brief lucid interval at a time when the will is made. The second is that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed with the prognosis as it actually is. ... The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the patient on the Clapham omnibus. I say that because the will is being made by the court, and so by an impartial entity skilled in the law, rather than the actual patient, whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. ... And I think that this provision governs the making of a will for a patient, and contemplates the particular patient: ... Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last at full capacity, for sometimes strong feelings mellow into indifference and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason. But subject to all due allowances, I think that the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. ... Fourth, I think that during the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors. The court will in fact be making the will, of course, and the court should not make a will on the assumption that the terms of the will are to be framed by someone who, for instance, knows nothing about lapse and ademption. Furthermore, as the court will be surveying the past and the future, the hypothetically lucid patient should be assumed to have a skilled solicitor to draw his or her attention to matters which a testator should bear in mind. ... Fifth, in all normal cases the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant's pen. There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted; and some of that moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies or shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindnesses by some gift which in quantum may bear very little relation to the cost or value of those kindnesses. Now I certainly do not say that these principles or factors are either exhaustive or very precise, nor am I altogether convinced that the notional lucid interval is the best way of expressing what the court has to do." (Emphases added).

207. The Vice-Chancellor's observations concern the jurisdiction in England which does not involve an application for leave to bring the application.

210. This raises the question of the relative importance of the leave application and the final application?

213. In some areas of the law, a leave application is generally a pre-cursor to a full hearing and often is heard expeditiously, without much argument and determined by whether or not there is a basis or arguable case for the actual application. If leave is granted the full scale hearing takes place thereafter.

216. A consideration of Division 2 of Part 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 ss.26, 27, 28 and 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).

219. 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.

222. 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.

225. Given that that is the scheme of the legislation in my opinion much of what Sir Robert Megarry V-C said applies to an application for leave to make the application.

228. In particular that the proposed testator has full knowledge of the past, and that the application is concerned with the actual person for whom the will is to be made and not some hypothetical person. The court must take the proposed testator as he was prior to losing testamentary capacity. In other words, making all due allowances, the court must seek to determine the likely terms of the will which the actual proposed testator acting reasonably would have made if restored to full mental capacity, memory and foresight. Further, the court should proceed on the basis that the proposed testator is advised by competent solicitors in determining what the will should provide. In addition, that the proposed testator is envisaged as taking a broad brush to the claims on his bounty.

231. This list of relevant matters is of course not exhaustive and must be read in addition to and subject to the provisions of ss.26, 27 and 28 of the Act.

235. Mrs Power was born on 27 August 1914 and Mrs Taylor was born on 26 January 1921. Mrs Power today is aged 86 and Mrs Taylor is aged 79.

238. On 8 September 1961 their mother, Mrs Violet Rogerson, executed her last will. She died on 17 October 1962.

241. At that date Mrs Power (then Miss Rogerson) was aged 48 years and Mrs Taylor (then Mrs Fox) was aged 41 years.

244. According to the terms of Mrs Rogerson's will she appointed her daughter Miss Rogerson who at that stage was not married, her executrix and after leaving a legacy of £400 to Mrs Fox she devised and bequeathed her real estate at 4 Belmont Street, Kensington together with all furniture to Miss Rogerson and divided the residuary estate equally between the two daughters.

247. The inventory filed with the court revealed real estate valued at £2,500, furniture valued at £50 and money in a savings account of £68.17.3d. This meant that after giving effect to the specific devise and bequest, there was no residuary estate.

250. Probate of the estate was granted to Miss Rogerson on 18 January 1963 and shortly thereafter she transferred the real estate into her name.

253. Around about 1959 Mr Michael Power was courting Miss Rogerson and some time around that date he went to live at the home of Mrs Rogerson. At that time Mrs Fox together with her three children were also living there. Apparently at that stage Mrs Fox's marriage had broken down. It appears that Mrs Rogerson and her daughter Letitia shared a bedroom and Mr Power had a bed in the passage. Miss Rogerson resented Mrs Fox being there and made it very difficult for her and her children. Eventually they were forced to leave the home, according to Mrs Taylor because of her sister's conduct.

256. It is uncertain when Mrs Fox left the home but it appears some time prior to 1962 and her mother gave a copy of a will she had made with the Public Trustee which left her half the estate. On an occasion Mrs Fox returned to the home, knocked on the door. Miss Rogerson opened it and told her that she was not welcome and not to come back. Thereafter they had no contact with each other. Mrs Fox later married Mr Taylor.

259. In August 1964 Mr Michael Power married Miss Rogerson and they continued to live in the home at 4 Belmont Street, Kensington.

262. Mrs Taylor states that she did have a good relationship with her mother.

265. Although the mother's will provided a payment of £400 to Mrs Taylor in fact she received only £50. She did not make any claim in relation to the will and she states the reason for this was because of her impecuniosity. She was unaware that the will provided that she be paid £400 until 18 July this year.

268. The plaintiff, Mr Desmond Monger, is the nephew of Michael Power. From about 1959 Mr Monger and his now wife, Beverley, saw a great deal of Mr Power and Mrs Power. From about 1980 Mr Monger took over managing the affairs of Mr and Mrs Power, helped them with their banking and Mr Power appointed him his power of attorney. He also organised various things for them. He and his wife continued to have social contact with them. He describes the family as close and friendly.

274. From about 1990 Mrs Power spent almost all of her time in bed. She was severely physically limited but it is said that in 1990 she did have her full mental faculties.

277. In the meantime, Mr Power executed a will on 7 November 1988 and left his estate to the plaintiff and his wife. There was a gift over to the plaintiff's children.

280. In 1994, Mr Power was diagnosed as having lung cancer and having a short period to live. He approached a solicitor with Mr Monger who states he did not actually attend on the solicitor and requested that a will be drawn up for Mrs Power. A draft was prepared on his instructions leaving her estate to Mr and Mrs Monger. Although Mr Power explained the terms of the document to Mrs Power who according to Mr Monger, understood its terms, a social worker arrived who was to witness the will and she stated that Mrs Power had Alzheimer's disease and was not of sound mind to sign a will. Accordingly the will was never executed.

283. On 8 August 1994 the Guardianship and Administration Board appointed Mr Papaleo, a solicitor, as administrator of Mrs Power's estate. On 28 September 1994 a Family Court order was made by consent whereby Mrs Power transferred a 40% interest in her house to her husband. Mr Michael Power died on 11 December 1994. On 25 January 1995 settlement occurred of the sale of the family home for $116,000 of which 60% was paid to Mrs Power.

286. The total value of the estate of Mr Michael Power was $69,643.17, of which $44,679 represented the proceeds from the sale of the home and $23,660 was in a bank account. The whole estate went to Mr and Mrs Monger.

289. On 26 September 1995 the Guardianship and Administration Board appointed Mr Monger as administrator of Mrs Power's estate and he has continued to hold that position.

292. Mrs Power resides in a nursing home. She has done so since late 1994. The nursing home is Boyne Russell House. She is unable to care for herself. She has no mental capacity to make a will. She has never made a will. If the court does not intervene she will die intestate and her sister, Mrs Taylor, will receive her estate.

295. Mrs Taylor has no assets of any worth, lives on a pension and is partially blind and in poor health. As I have stated, the estate is small, made up of a number of accounts and deposits at the Bank of Melbourne totalling $112,040.

298. Dr Angela Rutherford is the treating doctor of Mrs Power and she states that Mrs Power "has dementia of the Alzheimer's type. I do not believe her condition will improve." The doctor goes on to opine the view that she does not have the capacity to make a will and she is of the opinion that she never will have such a capacity. The doctor states that she has been advised that the tests for testamentary capacity require the testatrix to understand the nature of a document as being a will, to understand the nature and extent of the estate and to understand the claims which may be made upon her. She gives her opinion taking into account those matters.

301. The parties have compromised their differences and jointly put forward a proposed will to the court which has the effect of Mrs Taylor receiving $47,000 and the balance to the plaintiff and his wife.

305. Section 26 requires the court to be satisfied of certain matters before leave can be granted.

308. The first matter concerns testamentary capacity and I am satisfied that Mrs Power does not have testamentary capacity to make a will.

311. The second matter the court must be satisfied concerns the question whether the proposed will "accurately reflects the likely intentions of" Mrs Power. It is noted that the court must be satisfied of the "likely intentions".

314. The will makes provision for the payment to Mrs Taylor of $47,000. It is clear from the evidence that Mrs Power did not like her sister and secondly, had not seen her for a period of about 38 years.

317. Mrs Power never made a will so there is no evidence of her thoughts, views or intentions of what she intended to do with her estate based upon a previous will.

320. The contents of a draft will prepared at the instigation of Mr Power does not in my opinion reflect her intentions at the time. She did not give any instructions for the preparation of the will. That fact plus the fact that she did not execute it because she was suffering from dementia at the time leads to the conclusion that its contents provide no evidence of her likely intentions.

323. If one was to pose the question, what would Mrs Power, if she was of sound testamentary capacity today, be likely to do with respect to leaving anything to her sister the answer would most likely be that she would not wish to leave anything to her sister.

326. However, in considering the likely intentions of the person concerned it is relevant to take into account that she would be advised by competent and careful solicitors, who would seek to ascertain who may have a claim on her bounty, advise whether she should respond to that claim and more particularly that if she did not, advise on the likelihood of an application being made under Part 4 of the Administration and Probate Act 1958. Part 4 is concerned with testator's family maintenance and gives the right to any person to make a claim on a deceased person's estate for proper maintenance and support in circumstances where "the deceased had responsibility to make provision" - see s.91 of the Administration and Probate Act.

329. It is submitted by Mrs K. Rees of counsel on behalf of Mrs Taylor that Mrs Taylor had prospects of successfully bringing a proceeding under that Act if she should survive Mrs Power and Mrs Power failed to make provision for her.

332. The basis for a claim for proper maintenance and support arises out of the facts that Mrs Power as executrix of her late mother's will failed to pay to Mrs Taylor the sum of £400 and instead paid only £50, that the bulk of Mrs Power's estate can be traced back to the family home, that their mother failed to discharge her duty to her two daughters and further, that Mrs Taylor today is a person who is in a poor financial position. She deposes to the fact that she rents a flat and her sole income is the aged pension. She has no savings, she is suffering from poor physical health and her vision is significantly impaired.

335. In my opinion, in considering what the likely intention of the testatrix is, if she had testamentary capacity, the court should consider the likelihood of an application under Part 4 of the Administration and Probate Act 1958 in considering that intention - see s.28(a) of the Act. In my opinion a careful competent solicitor would advise a testatrix when considering the terms of a proposed will of the likelihood of a claim and the likely outcome and persuade that person to make some allowance to avoid the cost and acrimony which can arise out of such an application subsequent to death.

338. In my opinion Mrs Power, upon being apprised of the circumstances of Mrs Taylor and after being told that she failed in her duty as an executrix of her late mother's estate towards her sister would in the circumstances have come to the view that some provision should be made for her sister. In this regard I adopt and apply what Sir Robert Megarry V-C said supra concerning advice by competent solicitors. The careful and competent solicitor would so advise.

341. The quantum of the proposed bequest must be considered to determine whether it accurately reflects the likely intentions of Mrs Power today if she had testamentary capacity. In determining this issue, it is relevant to take into account the compromise reached by the parties. The evidence demonstrates that the paramount considerations leading to the compromise were the likely claim by Mrs Taylor under Part IV and in particular that Mrs Power had failed to discharge her obligations as executrix of their mother's estate.

344. The parties and their advisers have negotiated what they consider would be the likely outcome of such a claim and in these circumstances I am prepared to accept their compromise as reflecting the likely intention of Mrs Power.

347. The proposed will leaves the balance of the estate to the plaintiff and his wife. On present figures that would total about $69,000.

350. The evidence establishes that the plaintiff and his wife have looked after Mrs Power over many years, provided much assistance and Mr Monger is her administrator. He deposes to the fact that the family was close and that he and his wife enjoyed a good and friendly relationship with Mrs Power.

353. In my opinion the evidence leads firmly to the conclusion that Mrs Power would because of the close relationship with the plaintiff and his wife have wished to make some provision for them in her will. In this regard it cannot be overlooked that her late husband left his whole estate to the plaintiff and his wife. There is no suggestion from counsel for Mrs Taylor that Mrs Power, if of sound testamentary capacity, would not wish to leave part of her estate to the plaintiff and his wife. They do have a claim on her bounty.

356. Accordingly I am satisfied that the proposed will does reflect the likely intentions of Mrs Power as at today if she had testamentary capacity.

359. The third matter that the court must take into account is whether it is reasonable in all the circumstances for the court by order to authorise the making of a will in the terms proposed. Although the court in considering the application places itself in the shoes of the testatrix and considers all facts known to the testatrix including those which ought to have been known to her which are relevant to the question, must nevertheless then consider whether it is reasonable in all the circumstances for the court to authorise the making of the will in the terms specified. In determining this issue it is necessary to consider all matters specified in s.28.

362. The value of the estate is only $112,040 as at today and the court should avoid, if possible, anything which may severely diminish its value, such as litigation. In that regard weight must be given to the compromise reached by the parties. I am satisfied that Mrs Power if of testamentary capacity to day, properly advised would appreciate the claims made on her bounty by both the plaintiff and his wife and Mrs Taylor. I am satisfied that Mrs Power will not regain testamentary capacity. I am also satisfied that both Mrs Taylor and the plaintiff would have some prospects of success if either made application under Part 4 of the Administration and Probate Act 1958. Mrs Taylor would be entitled to claim on an intestacy and there is no evidence to suggest that Mrs Power if of sound testamentary capacity would wish to make gifts for a charitable or any other purpose.

365. All told, taking into account all relevant matters, and the terms of the proposed will, in my opinion it is reasonable in all the circumstances for the court to authorise the making of the will in those terms. It follows that leave should be granted to the plaintiff and the defendant, Mrs Taylor, to make application under s.21(1) of the Act for an order authorising the will to be made in the proposed terms.

370. Having granted leave, in the present circumstances it is my opinion that the court should proceed pursuant to s.27(2) to hear the application for approval and this accords with the approach of the parties.

373. There are no new facts or relevant matters to consider on this part of the application.

376. Having been satisfied of the matters set out in s.26(a) to (c) (inclusive) and taking into account the additional matters set out in s.28 it is my opinion that an order be made authorising a will in the terms of the proposed will put forward by both parties which the court approves. The court approves the proposed contents of the will.

379. Subject to submissions from counsel I propose to make the following orders -

1. That the plaintiff and the defendant have leave to make an application for an order pursuant to s.21(1) of the Wills Act 1997 for authority to make a Will on behalf of Letitia Anwyn Power.

2. That the court authorises the Will which is attached to this order, to be made on behalf of Letitia Anwyn Power of Boyne Russell House, 184 Victoria Street, Brunswick in the terms set out therein which are approved by the court.

3. Direct that the Will be signed by the Registrar of Probates, sealed with the seal of this court and deposited with the Registrar under Part 1, Division 1A of the Administration and Probate Act 1958.

I certify that this and the 19 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 2 August 2000.