Re the Statutory Will of Colin [2023] NSWSC 294

Supreme Court of NSW|2023-03-29|Before: Hallen J, Commission J

Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 Small v Phillips (No 2) [2019] NSWCA 268 Small v Phillips (No 3) [2020] NSWCA 24 Wills v NSW Trustee [2022] NSWSC 1098 Texts Cited: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) Category: Principal judgment Parties: Phillip (Plaintiff) Colin (Defendant) Representation: Counsel: G McNally SC (Plaintiff)

Introduction

By Summons filed on 22 December 2022, the Plaintiff (who will, where necessary, be referred to as Phillip), brings an application for an order authorising a statutory Will to be made on behalf of the Defendant (who will be referred to, where necessary, as Colin). Although this proceeding is not brought in the Court's protective jurisdiction, I shall not identify the Plaintiff and the Defendant other than by his first name, or by the role played in the proceedings.
The application is brought under Div 2 of Pt 2.2 of the Succession Act 2006 (NSW) (the Act). In accordance with ss 18 to 23 of the Act, the Plaintiff seeks, inter alia, that leave be granted to him, under s 19 of the Act, to make an application, on the Defendant's behalf, under s 18 of the Act, and an order that the terms of the proposed Will, a draft of which marked as Ex. A, be authorised under s 18 of the Act.
I shall return to the terms of the proposed statutory Will later in these reasons.
The only person named as the Defendant is Colin. He is not a proper contradictor as the evidence reveals that he is a person under a legal incapacity. Despite this, I am of the view that there is no need for a contradictor, nor any reason for him to be represented, as it appears there are no other living relatives, nor anyone who might be considered appropriate, to become involved in the proceedings on his behalf. However, I shall identify other persons to whom notice of the application has been given.
The matter was first listed in the Succession List on 17 February 2023. On that occasion, Mr G P McNally SC, appeared for the Plaintiff. The Court directed the Plaintiff to serve the Summons and all affidavits in support upon the persons who would be entitled under the operation of the rules of intestacy in the event the Defendant died intestate and stood the matter over to the Succession List on 20 March 2023.
On 20 March 2023, senior counsel again appeared for the Plaintiff. I initially stood the matter over for further directions on 11 April 2023. The Court was requested, if possible, to deal with the matter in Chambers.
On consideration of the evidence that had been filed, and the detailed submissions provided by senior counsel, for which I am grateful, I formed the view that the matter could be dealt with in Chambers. In doing so, I remembered s 11 of the Supreme Court Act 1970 (NSW) and s 71 of the Civil Procedure Act 2005 (NSW).
Section 11 of the Supreme Court Act provides: Distinction between court and chambers (1) The distinction between court and chambers is abolished. (2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court."
There is no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [147] (Campbell J). Indeed, the section specifically "abolishes the distinction between court and chambers": Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [9]. (An application for special leave to appeal made to the High Court was dismissed: Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading as Institute Of Rheumatology And Orthopaedics and Ors Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading as Institute Of Rheumatology And Orthopaedics [2021] HCASL 230.)
In addition, the business of the Court, whether conducted in court, or otherwise, is taken to be conducted in court.
Section 71 of the Civil Procedure Act permits the business of a court, in relation to any proceedings, to be conducted in the absence of the public, "...(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit".
Whilst a chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom, dealing with a matter "in chambers" does not mean that the proceedings are dealt with in secret. To deal with a matter "in chambers" means no more than a less formal procedure may be adopted by the Court where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 at [19] (White J with whom Davies and Williams JJA agreed). It saves costs because it avoids a hearing at which the party, or parties is legally represented.
In the present case, I was satisfied that it is appropriate to deal with the matter in this way. That determination still enables the Court to deal with the proceedings justly and at proportionate cost.

The Evidence

The Plaintiff filed three affidavits, one made on 22 December 2022, comprising 55 paragraphs, and Exhibit PD1, another made on 14 February 2023, comprising three paragraphs, and one annexure, and another made on 15 March 2023, comprising 30 paragraphs, and one annexure.
The Plaintiff also relied upon an affidavit sworn on 19 December 2022, by Mr V Massey, solicitor, comprising 11 paragraphs; an affidavit of service made on 7 March 2023, by Mr D J Sayer, solicitor, comprising 10 paragraphs and several annexures; and an affidavit of service sworn on 15 March 2023, by Kylie Burnett, comprising 22 paragraphs, and three annexures.

Factual Background

I have taken what follows from the affidavits to which I have referred.
The Defendant was born in May 1927. He is almost 96 years of age. He suffers from dementia, and presently resides at the Holy Family Services Aged Care Facility at Marayong, Sydney ("Holy Family Services").
Whilst the Defendant wished to live independently, the medical team at Ryde Hospital advised that he required full time placement in a dementia unit in an aged care facility. He was admitted to Holy Family Services in 2017.
Colin lived in a de-facto relationship with Valerie from 1974 until her death in 2013. At the time of the commencement of that relationship, Colin had not been married before and he had no children.
The Plaintiff is a child of Valerie. He has three brothers, Kenneth, Michael and Robert, who are also the children of Valerie.
At the time of the commencement of their de-facto relationship, the Plaintiff was 12 years of age, Robert was 15 years of age, and Kenneth and Michael were, then, adults.
After Valerie moved to a residence at Rydalmere with Colin, Kenneth, Michael, and Robert had very little involvement with them.

Colin's estate

There is evidence of the nature and value of Colin's estate. It has an estimated value of almost $1.1 million. His estate comprises monies in Westpac Bank term deposits ($630,000) and a refundable accommodation deposit ("RAD") for his nursing home ($450,000). His estate also consists of stamp and coin collections, as well as stored household effects and other personal belongings (of unknown value). He has no liabilities.

Colin's family

There is some evidence available to the Plaintiff concerning persons who might be entitled to Colin's estate under the operation of the rules of intestacy.
Searches reveal that there is no registration of any marriage in New South Wales, in relation to Colin, and no entry has been located recording him as the parent of any child. In addition, Colin was not survived by Valerie, his long-term spouse (within the meaning of that term in Chapter 4 of the Act).
Colin's parents both predeceased him. Colin's father, Francis, died on 18 January 1959. Colin's mother, Ada, died on 4 July 1972.
Colin had a brother and two sisters, all of whom are now deceased. His brother, Neville, died on 21 July 1989. His two sisters, Gweneth and Winifred died respectively on 1 February 2011 and 19 June 2022.
Neville had three sons, Leslie, Bryan and Gordon. Gweneth and Winifred had no children.
It follows that the only persons entitled on intestacy are Leslie, Bryan and Gordon, being the nephews of the deceased: s 129(3) of the Succession Act.
The Plaintiff states that in the years that he has known Colin, he had never known Neville, or any of his children, to contact Colin; nor was he aware that Colin had contacted Neville, or any of his children.
None of Valerie's children, including the Plaintiff, share Colin's estate under the operation of the rules of intestacy.
Valerie made a Will in 2011 in which the Plaintiff was the sole beneficiary. At the time of her death, however, Valerie had barely enough money in her own name to pay for her funeral.

Colin's testamentary wishes

On 6 February 2003, Colin executed a Will with Mr Sayer. The original of this Will is held at Marsdens Law Group ("Marsdens") at Camden. In that Will, Colin appointed Valerie as the sole executrix and trustee, and in the event that she predeceased him, he appointed the Plaintiff, as the substitute executor and trustee.
The Will provided: "3 I GIVE DEVISE AND BEQUEATH to my friend, PHILLIP, all my workshop tools including my lathe, milling machine, bench and bench drills and the sum of Ten Thousand Dollars ($10,000). 4 I GIVE DEVISE AND BEQUEATH to THE SOCIETY OF ST PIUS X of 13 William Street, Rockdale in the State of New South Wales the sum of Ten Thousand Dollars ($10,000). 5 I GIVE DEVISE AND BEQUEATH to the MUSIC BROADCASTING SOCIETY OF NEW SOUTH WALES CO-OPERATIVE LTD of 76 Chandos Street, St Leonards in the State of New South Wales the sum of Five Hundred Dollars ($500). 6 I GIVE DEVISE AND BEQUEATH the residue of my real and personal property whatsoever and wheresoever situate to my trustee upon trust to sell call in and convert into money such part or parts of the same as shall not consist of money but so that my trustee shall have power to postpone such sale calling in and conversion indefinitely such part or parts of the same as shall not consist of money as my trustee shall think fit without being responsible for loss. 7 AND SHALL out of the proceeds of such sale calling in and conversion as aforesaid pay all my funeral and testamentary expenses Death Estate (including Federal Estate Duty) Succession and other duties payable in consequence of my death and my debts. 8 AND SHALL stand possessed of the residue of my said property and moneys (which and the investments for the time being representing the same are hereinafter called "my residuary estate") UPON TRUST for VALERIE … absolutely."
There was no gift over in the event that Valerie did not survive the deceased.
The Plaintiff's solicitors have written to Marsdens to ascertain whether Colin had executed another will. On 3 November 2022, a representative of that firm indicated that they did not hold any will other than the statutory Will.
The Plaintiff also contends that Colin would have used the firm of Barber & Massey, of Parramatta, to make any further Will. While that firm held the original Will of Valerie, it appears that they did not hold any will of Colin. Mr Massey has stated that he has no records of ever drafting a Will, or otherwise, acting for Colin in regard to the preparation of any Will. He states that he did not hold, nor has he ever held, a Will in safe custody for Colin.
In 2013, following the death of Valerie, Colin appointed the Plaintiff and his wife, Narelle, as his Enduring Attorneys and Guardians.
Evidence of Colin's more recent testamentary wishes were provided in the affidavit of the Plaintiff made on 22 December 2022. He is said to have told the Plaintiff that if he predeceased Valerie, his estate would pass to her. When Valerie was sick, Colin said to the Plaintiff, on a number of occasions: "If your mother passes away, you will inherit what she was to get under my will."
In addition, the Plaintiff states that when Colin was signing his Enduring Power of Attorney, he said the following words: "Now that your mother has gone, you will get her share of my estate when I go."

The persons entitled under the operation of the rules of intestacy

Since Valerie predeceased the deceased and there is no gift over, Colin's residuary estate is subject to the operation of the rules of intestacy.
Section 102 of the Succession Act, relevantly, provides that "an intestate is a person who dies and who … leaves a will but does not dispose effectively by will of all or part of his, or her, property".
The evidence reveals that Leslie, Bryan, and Gordon, who would be the residuary beneficiaries of Colin's intestate estate based on the operation of the rules of intestacy, have been sent by mail, a copy of the Summons and the affidavits sworn as at the date of posting, and a covering letter which explains to them the nature of the proceedings: Affidavit of Mr Sayer, 7 March 2023, annexure B.
After obtaining legal advice, Gordon has indicated, through his solicitor, Ms N Stevenson of Barry F Cosier & Associates, that he does not wish to appear or otherwise participate in the proceedings: Affidavit of Mr Sayer, 7 March 2023 at par 9; annexure E.
There is evidence that Bryan phoned Ms K A Burnett, a paralegal, employed by Helliars Solicitors and Attorneys, the Plaintiff's solicitors, and confirmed that he had received the covering letter on 6 March 2023: Affidavit of Ms K Burnett, 15 March 2023, at par 6.
Delivery of the documents to Leslie's address has been confirmed by the Australian Post tracking system, which indicates that they were delivered on 1 March 2023: Affidavit of Ms Burnett, 15 March 2023, at par 19; annexure C.
Neither Leslie, nor Bryan, has indicated that he wishes to appear in the proceedings and neither has filed an Appearance.
The Plaintiff also alleges that each of Leslie, Bryan and Gordon has played no part in Colin's life: Affidavit of the Plaintiff, 22 December 2022 at par 17. Perhaps, this explains the reasons for his lack of involvement, respectively, in the proceedings.

The Plaintiff's relationship with Colin

It appears from the evidence that the Plaintiff shares a close relationship with Colin.
As a child, the Plaintiff would regularly ride his bike to visit Colin and Valerie at Rydalmere. He spent a considerable amount of time with Colin in his garage workshop, where Colin showed the Plaintiff his tools and other equipment. (The equipment is left to the Plaintiff in Clause 3 of Colin's current will: Affidavit of the Plaintiff, 22 December 2022 at par 18.)
After his marriage, the Plaintiff, with Narelle, their children, have continued regular visits to Rydalmere whilst Colin lived there. The Plaintiff celebrated important occasions with Colin such as birthdays, Christmas, Easter and Mother's Day: Affidavit of the Plaintiff, 22 December 2022 at par 19.
The Plaintiff always considered Colin as part of his family. Even after Colin's mobility decreased because of his arthritic knees, the Plaintiff regularly assisted him, carrying out tasks such as mowing the lawn, maintaining the yard, cleaning gutters, and taking Colin and Valerie to all necessary appointments. The Plaintiff also took Colin to sporting events and would talk to him about his various interests, such as trains, his coin collection and the solar system: Affidavit of the Plaintiff, 22 December 2022 at pars 20-21.
After Valerie died in 2013, the Plaintiff commenced visiting Colin twice a week, once on the weekend and maintained regular telephone contact with him. The Plaintiff was the main contact point for Colin: Affidavit of the Plaintiff, 22 December 2022 at pars 23-24.
Once Colin reached a stage when he could no longer care for himself independently, the Plaintiff, or Narelle, would drive him to his several appointments and arranged for Meals on Wheels and other aged care services to maintain Colin in his home for as long as possible in accordance with his wishes.
When Colin appointed the Plaintiff as his Enduring Attorney and Guardian, Colin was losing his independence, was starting to forget things and needed assistance to manage his affairs. The Plaintiff continues to manage Colin's affairs.
Initially, the Plaintiff and Narelle started making preparations for Colin to move in with them but then the medical team's advice that Colin required full time placement in a dementia unit in an aged care facility put an end to those plans.
Following Colin's permanent placement at Holy Family Services, despite the reduction in frequency because of COVID-19 restrictions, the Plaintiff attempted to maintain his regular visits, and kept up to date with Colin's condition through updates provided by the medical team.
The Plaintiff contends that Colin was a part of his family life and Colin was well known to his family and friends.

The Plaintiff's position in life

The Plaintiff asserts that his position in life is relevant to whether Colin would wish to make a Will in accordance with what has been proposed. He has set out, in some detail, his, and Narelle's financial and material circumstances, which the Court has considered but will not repeat.
The Plaintiff has a disabled daughter, Erin, who is currently 26 years of age. In around 2011-2012, Erin was diagnosed with Ehler Danlos Syndrome, a congenital connective tissue disorder. She receives the Disability Support Pension and is dependent upon the Plaintiff and Narelle.
The Plaintiff says that if the residue of Colin's estate is left to him, this will enable Narelle to retire, in due course, and effectively become Erin's full-time carer. I have carefully read the evidence but shall not repeat it in these reasons. I accept that any financial benefits received out of Colin's estate, will assist in reducing their liabilities, as they have no savings.

Colin's medical condition

Colin is unable to look after himself. His medical capacity started to decline in 2016. He is required to use a wheelchair on most days, with the assistance of nursing staff, but he can walk with a frame in his bedroom. He cannot attend to any of his activities of daily living, bathe, or dress himself, and requires full assistance from the nursing staff. He is incontinent and wears incontinence underwear. He is reluctant to eat or drink, which has caused a gradual drop in his weight. There was one time when Colin 'lashed out' at the locum for Dr Jan-Michael Knapik, who was trying to examine him as his urine output was reduced.
He is not alert, or orientated, and does not interact with others. He no longer converses and is now unable to recognise the Plaintiff.
In a medical report dated 12 December 2022, Dr Knapik, a General Practitioner, who specialises in Family Practice and Aged Care, Colin was said to be suffering from progressively advanced dementia, which has resulted in severe cognitive impairment. Dr Knapik believes that Colin has no sufficient mental capacity to make a will and it is unlikely that he will ever regain testamentary capacity.
Colin does not have a terminal illness. He had bowel cancer in the late 1990s but has since recovered from this. He also suffers from glaucoma, and has vision in one eye only, due to a childhood incident. Colin's other illnesses include skin cancer, which was treated topically at Holy Family Services, renal failure, high cholesterol, and heartburn.
Of course, the Court is aware that dementia is a neurodegenerative disorder for which there is currently no cure and that, otherwise, Colin is unlikely to regain capacity.

The proposed statutory Will

A draft Will, as proposed as the statutory Will was provided to the Court. However, prior to the matter being dealt with, the Plaintiff submitted an amended proposed will which has been marked as Ex. A. (It has followed, so far as is necessary, the Will previously made by Colin, but provides for a gift of residue in light of Valerie's death.).)
In Ex. A, Colin revokes all former Wills and testamentary dispositions (Clause 1); appoints the Plaintiff as the sole executor (Clause 2); makes the same general and pecuniary legacies, including those previously made to charity (Clauses 3, 4 and 5); gifts the residue of the estate to the trustee and directs that after the payment of all funeral and testamentary expenses and other duties (Clauses 6 and 7), the residue of his estate be held for the Plaintiff absolutely, if he survives by 30 days (Clause 8). The proposed Will also provide details of how Colin wants his funeral and burial to be conducted (Clause 9).

The Act - the guiding principles

As was stated by Lindsay J in Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419 at 425; [2014] NSWSC 1065 at [54], albeit in relation to a minor lacking testamentary capacity, which applies, equally, to an adult lacking testamentary capacity: "The jurisdiction exercised by the Court in authorising a will to be made on behalf of a child lacking testamentary capacity is statutory. An exercise of that jurisdiction must begin, and end, with the text of the legislation in mind…"
This type of litigation is ordinarily not adversarial litigation. As his Honour also wrote in Re M's Codicil [2018] NSWSC 936 at [33]-[34]: "The jurisdiction conferred on the Court by the Succession Act is essentially, in nature, protective of the incapacitated person. Accordingly, upon an exercise of the jurisdiction, the Court must remain mindful that whatever is done, or not done, for or on behalf of the person in need of protection, must be for the benefit, and in the interests, of that person: GAU v GAV [2016] 1 Qd R 1 at [48] and [52]; Re K's Statutory Will [2017] NSWSC 1711 at [19]-[21]."
In Small v Phillips (No 2) [2019] NSWCA 268, it was noted, at [149], that: "As the primary judge observed, the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court. That is to say, while the Succession Act contemplates that there be a moving party, whom the Court must conclude to be appropriate, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will. While it is important for the Court to be satisfied that it has had access to all relevant material for the purposes of deciding whether to authorise an application and, if so, to authorise the making of a statutory will, it does not necessarily follow that the various parties to such proceedings have precisely the same right to procedural fairness that would be applicable in adversarial litigation."
I have recently dealt with the statutory scheme for the making of a statutory will in Re The Will of Alexa [2020] NSWSC 560; in Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190; and in Re the Will of Robert [2022] NSWSC 1037. I shall repeat what I wrote in those cases, with some additional principles.
As stated above, the sections of the Act that are relevant to the matters the subject of these proceedings, commence at s 18 of the Act. They apply on, or after, the commencement of the Act, namely on 1 March 2009, and, in the case of an order with respect to the alteration, or total, or partial, revocation of a will, apply even if the will was made before that commencement date (see cl 3(5) of Sch 1).
There can be no dispute that the Act may be relied upon in respect of Colin.
As stated in Re the Statutory Will of Rolf Huenerjaeger at [68]-[71]: "A statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity: s 26 of the Act. It is undoubted that the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court: Small v Phillips (No 2) [2019] NSWCA 268 at [149] (Brereton and McCallum JJA; Emmett AJA). Whilst the Act contemplates that there be a moving party, who the Court must conclude is an appropriate person, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will. (I should mention that an application for special leave to appeal the decision of the Court of Appeal was dismissed by the High Court (Bell and Gageler JJ) in Phillips v Small & Ors [2020] HCATrans 96 at p 14(546) - p 15(550), the conclusion being that: "We are not persuaded that the application gives rise to any issue of principle concerning the construction of s 22 of the Succession Act 2006. In our opinion, there are insufficient prospects that were special leave to appeal to be granted the appeal would be successful. The application is dismissed with costs.") In New South Wales, it has been held that a person who will benefit from the proposed statutory will may make an application. In such a circumstance, the Court might order separate representation of the incapable person, particularly if it appears that there is, at least the possibility of, a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made: AB v CB [2009] NSWSC 680 at [13] (Palmer J)."
Section 18 of the Act provides that the Court may, on application by any person, make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity.
As I stated in Re the Will of Robert at [111]-[112]: "It is to be observed that s 18(1) contemplates that "any person" may make an application. There is no reason to read down the words "any person", except by reference to s 22, to which reference will be made later in these reasons. However, the Court is not to make an order under s 18 unless the person in respect of whom the application is made is alive when the order is made: s 18(3). A will that is authorised to be made or altered by an order under s 18 must be deposited with the Registrar (s 18(6)), but a failure to comply with that requirement does not affect the validity of that will."
In the circumstances of this case, the Court is satisfied that the Plaintiff is an appropriate person to make the application for an order under s 18 of the Act.
In the circumstances where Colin has no immediate family members, who are still alive, and his closest family members are his nephews, with whom he has had no meaningful relationship, I am satisfied that there are no members of his family with a legitimate interest in the Plaintiff's application. Indeed, in my view, there are no people, other than the Plaintiff, who would have reason to expect a gift, or benefit, from Colin's estate.
Section 19(1) of the Act requires the applicant to obtain the leave of the Court to make an application for an order under s 18 of the Act. In applying for leave, the person must (unless the Court otherwise directs) give the Court the information specified in s 19(2) of the Act. That information includes: a written statement of the general nature of the application and the reasons for making it, satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval, any evidence available to the applicant of the person's wishes, any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, any evidence available to the applicant of the terms of any will previously made by the person, any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person, any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, any other facts of which the applicant is aware that are relevant to the application.
The checklist provided by s 19 of the Act is neither exhaustive, nor rigid, and the Court may dispense with the requirement to provide some of the information when it is clear that the required information exists, or might exist, but could have no bearing on the fate of the leave application, or on the application for a final order, or if to require it to be provided would entail needless expense and delay. No such dispensation is required where the information does not exist.
In the circumstances where the Plaintiff has instructed experienced legal practitioners, including senior counsel, and was given the opportunity to provide additional evidence, I infer that all the evidence that the Plaintiff could have advanced, in relation to s 19 of the Act, has been advanced.
The Court of Appeal in Small v Phillips (No 2) at [151] observed that there is a distinction to be drawn between the granting of leave under s 19 of the Act to make an application and the decision whether an applicant is an appropriate person for the purposes of s 22(d) of the Act, on the one hand, and the making of an order under s 18 of the Act authorising the making of a statutory will on the other.
In relation to the two-stage procedure, Brereton and McCallum JJA, and Emmett AJA, wrote at [151]: "That is to say, on the hearing of an application for leave under s 19, the applicant will normally be entitled to be informed of any material that might be the basis for concluding that the applicant is not an appropriate person to make an application. That, however, may be a different question from whether, once an applicant has obtained leave under s 19, the applicant has an entitlement to have access to all material available to the Court in considering whether or not it is appropriate to make an order under s 18, having regard to the other matters referred to in s 22."
Section 20(1) of the Act provides that, on hearing an application for leave, the Court may give leave and allow the application for leave to proceed as an application for an order under s 18, and, if satisfied of the matters set out in s 22, make the order.
The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) of the Act if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of ss 19(2) and 22 of the Act is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: Re Fenwick (2009) 76 NSWLR 22 at 49; [2009] NSWSC 530 at [120] (Palmer J). This will be done to save the parties expense and time.
In following the two-stage procedure for the authorisation of a statutory will, being, first, an application under s 19 of the Act for leave to apply for an order under s 18 of the Act, and second, an application under s 18 of the Act for an order authorising a will to be made, baseless, or unmeritorious, applications are likely to be screened out at a relatively early stage: Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362 at 364 [5]; [2013] NSWSC 1550 at [5] (Black J); Argiro v Lagozino [2017] SASC 185 at [20] (Stanley J).
Yet, there is nothing in the text, or in the context, of s 22 of the Act that limits the role of the leave application to simply screening out baseless or unmeritorious claims.
Section 20(2) of the Act states that "the Court may revise the terms of any draft of the proposed will". The power is not limited to enabling the Court to accept only revisions offered by the applicant or by any other party. The Court may initiate or decide upon a revision of the proposed will that is to be the subject of leave under s 19 of the Act.
There is no doubt that it is within the Court's power to revise the amended draft will provided to the Court, to ensure that its terms are appropriate for approval by the Court under s 18 of the Act in the circumstances in which the Court is required to make its decision.
In Re Will of Jane [2011] NSWSC 624, I wrote at [63] and [68]: "Without limiting the action the court may take in hearing the application for leave, the court may revise the terms of any draft of the proposed will, alteration or revocation for which the court's approval is sought: s 20(2). Therefore, if the proposed statutory will fundamentally fulfils the requirements of the section, but requires adjustments, the court may make such adjustments by modifying, redrafting or altering its terms. ... To be satisfied requires the court to assess the terms of the proposed statutory will, whilst retaining, under s 20, the power to revise those terms in order to perfect its conformity with the incapacitated person's reasonably likely testamentary intentions. It would appear to demand a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions."
I also wrote, at [96]: "The lack of testamentary capacity, the accurate reflection of testamentary intentions, and the adequacy of steps taken for proper contradictors are matters of fact that are to be established. What may be described as the "appropriateness" requirements involve the exercise of curial discretion. Thus, whilst relevant parties might consent to the terms of the proposed statutory will, that consent cannot be conclusive because the execution of a will for a person who lacks capacity is a decision to be made by the court."
Section 21 of the Act, relevantly, provides that, in considering an application for an order under s 18 of the Act, the Court may have regard to any information given to the Court in support of the application under s 19 of the Act. Further, the Court may inform itself as to any other matter, in any manner it sees fit, and the Court is not bound by the rules of evidence.
Section 22 of the Act, relevantly, provides that the Court must refuse leave to make an application for an order under s 18 of the Act unless the Court is satisfied that: (a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and (c) it is or may be appropriate for the order to be made, and (d) the applicant for leave is an appropriate person to make the application, and (e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.
Before leave can be granted pursuant to s 19 of the Act, the Court must be satisfied of each of the matters in s 22 of the Act. Similarly, on hearing an application for leave the Court may, having granted leave to the applicant, only make an order under s 18 of the Act if satisfied of the matters set out in s 22 of the Act: s 20(1)(b) of the Act. Section 22, however, does not demand certainty.
As ordinary words, "to be satisfied" means to be furnished with sufficient proof that the Court is assured, or convinced, on the balance of probabilities, of each of the conditions. The Court is required to assess the terms of the proposed statutory will, whilst retaining, under s 20(2) of the Act, power to revise those terms in order to perfect its conformity with the incapacitated person's reasonably likely testamentary intentions. It would appear to demand a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions.
(It can be seen that under s 18(1) of the Act, the Court can make a final order only in respect of a person "who lacks testamentary capacity". However, on the application for leave under s 19 of the Act, the Court must be satisfied that "there is reason to believe that [the incapacitated person] is, or is reasonably likely to be, incapable of making a will": s 22(a) of the Act. Thus, in the leave application, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity, but in order to obtain a final order, a jurisdictional fact must be proved, i.e. that the proposed testator actually lacks testamentary capacity: Re Fenwick at [121] (Palmer J)).
There is no definition of "testamentary capacity" in the Act. It must, however, mean "the capacity to make a will" (applying the test of testamentary capacity usually defined by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565 (Cockburn CJ)). Nor is the cause of any incapacity stated. It may arise from mental illness, head injury, stroke, a degenerative disease or condition, or an inability to communicate because of a physical, or other, disability.
Relevantly, a person who is incapable of managing his, or her, own financial affairs, nonetheless, may have testamentary capacity: Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377; CJ v AKJ (2015) 16 ASTLR 24 at 29-32; [2015] NSWSC 498 at [27]-[43] (Lindsay J); Wills v NSW Trustee [2022] NSWSC 1098 at [2] (Lindsay J).
Section 22(b) contains two concepts, one being that the terms proposed are those that are reasonably likely to have been included in a will if the person had made one. The other is that it is reasonably likely that a will in those terms would have been made by the person absent the loss of testamentary capacity.
Thus, the Court's concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is reasonably likely to be, incapable of making a will, that must be considered. It is not an objective, or hypothetical, person who is considered. The plaintiff undertakes the onus of proving the requisite testamentary intention by placing relevant evidence before the Court.
The Shorter Oxford English Dictionary defines "reasonably" as "sufficiently, fairly".
As to the phrase "reasonably likely," Palmer J wrote in Re Fenwick at [152]: "Thus 'reasonably likely' can mean 'a fairly good chance that it is likely' or 'some reasonable people could think that it is likely' or 'some reasonable people could think that there is a fairly good chance that it is likely'. Such are the nuances of the English language."
As to the Court of Appeal wrote in Small v Phillips (No 2) at [158]: "The introduction of 'reasonably' introduces an element of uncertainty over and above 'likelihood'. Thus, there is a degree of latitude or margin for judgment in considering the intentions of the incapacitated party."
In Re The Statutory Will of Rolf Huenerjaeger, I wrote at [120]: "Whether the proposed statutory will is "reasonably likely" to be one that would have been made must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. This requires the Court to inquire into the evidence as to the hypothetical subjective state of mind of the person lacking capacity."
The jurisdiction of the Court is, so far as is possible, to make a statutory will in the terms in which a will would have been made by that person if the person had testamentary capacity at the time of the hearing of the application.
As was also written in Small v Phillips (No 2) at [158]: "That distinction raises questions of what might be characterised as relative certainty. Clearly enough, one can envisage a situation where a person evinced a clear intention and desire to make a will in a finalised form but, because of intervening events, leading to incapacity, was unable to execute the will. Evidence may well lead to the conclusion that, in such a situation, the will is one that would have been made by the incapable person. Nevertheless, that degree of certainty is not necessary in order to satisfy s 22(b). Thus, even if the proposed will is not one about which it can be said the incapable person would have made it, s 22(b) may be satisfied where the evidence discloses that the proposed will is one that the incapable person is reasonably likely to have made. The introduction of "reasonably" introduces an element of uncertainty over and above "likelihood". Thus, there is a degree of latitude or margin for judgment in considering the intentions of the incapacitated party." [Emphasis in original]
The requirement in s 22(b) of the Act, in my view, confirms that a vigilant and anxious examination of the evidence as to the incapable person's actual, or reasonably likely, intention is required.
As Palmer J put it in Re Fenwick at [155]: "has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?"
His Honour also wrote at [161]: "In such a case the Court may be satisfied as to what the incapacitated person is 'reasonably likely' to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person's testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances."
In Re Will of Jane, I wrote at [83]: "The question is not whether he, or she, would likely have preferred the proposed statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be 'reasonably likely' to be a will that he, or she, would have made had he, or she, had testamentary capacity."
Yet, s 22(b) of the Act should be approached recognising, as Palmer J observed in Re Fenwick at [132], that the Court's jurisdiction in an application of this kind is "remedial and protective" and the Court's role is "to endeavour to rectify a problem which is affecting people's lives, in the best possible way", whilst also recognising that the Court's authority is limited by the statutory conditions set in s 22 of the Act and is not at large: Burns v The Estate of Troy Mitchell Burns a Protected Person [2013] NSWSC 1550 at [22] (Black J).
Section 22(c) of the Act enables the Court to grant leave if it is satisfied that the evidence results in a final order being appropriate, or that it may be appropriate, having regard to the possibility, that further evidence may be adduced at the final order stage which will positively satisfy the Court that the final order is then appropriate.
There is nothing in s 22(c) of the Act that provides guidance as to what circumstances, in addition to those set out in the other sub-paragraphs of the section, are to be taken into account in determining whether a final order, is, or may be, "appropriate", which, I take to mean "suitable" or "proper".
What is required is for the court to assess, objectively, whether, and to what extent, it is, or may be, "appropriate" to make the order under s 18. In so doing, what the Court must consider is whether the expressed intention is the product of the incapacitated person's free choice, or has some undue pressure or influence been applied.
What is "appropriate" in the circumstances of the particular case may be measured against the standard of what is in the interests, and for the benefit, of the person lacking capacity, which inquiry is one going to the objective circumstances pertaining to that person and her, or his, estate, together with those who might have a reasonable expectation in relation to her, or his, bounty: Re MP's Statutory Will [2019] NSWSC 331 at [24] (Lindsay J). Assistance in answering this question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory will.
In relation to s 22(d) of the Act, there is no definition of who may, or who may not, be an "appropriate" person, seeking leave to make the application for an order. Again, the words "suitable" or "proper" appear apt in determining whether this condition is satisfied. It is doubtful that an "officious bystander" might be such a person.
In Jeavons v Chapman (No 2) [2009] SASC 3 at [30], Gray J quoted from a 1992 Report of the New South Wales Law Reform Commission: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) at par 2.9. The Report stated, in support of its recommendation that "any person" should be entitled to apply to the Court to make a statutory will: "Solicitors, social workers and health care workers who may be closely involved with the person should be entitled to make applications. The Protective Commissioner who may already be managing the person's financial affairs should also be entitled to make an application."
One would expect that there would be no difficulty establishing the requirement that the applicant for leave is an appropriate person in a case where the applicant is a person who had no real interest in the outcome of the application for an order: see, for example, Application by Peter Leslie Kelso [2010] NSWSC 357 at [14] (Ball J). However, one might be concerned whether a person who is to benefit by the proposed statutory will is "appropriate," since he, or she, has a real interest in the outcome of the application. In probate suits, where there is an issue about the validity of a will, the court regards as a circumstance exciting suspicion, a will prepared by a person who takes a benefit under it, or if the beneficiary is instrumental in having it prepared, and calls for the vigilant and anxious examination of the evidence as to the testator's appreciation and approval of the contents of the will: Nock v Austin (1918) 25 CLR 519 at 528; [1918] HCA 73 (Isaacs J).
On the question of representation under s 22(e) of the Act, the applicant should take all steps necessary to identify, locate, and serve any person who may have a legitimate interest in the application. Importantly, the class of persons may be wider than "persons for whom provision might reasonably be expected to be made by the will". The class of persons under subs (e) are likely to include beneficiaries under any earlier will, any person entitled on intestacy, persons who may have a claim on the bounty of the person lacking capacity, and perhaps, any eligible person within the meaning of that term in s 57 of the Act. These are persons with a legitimate interest in the application.
By virtue of s 23(1) of the Act, a will made by an order under s 18 is properly executed only if it is signed by the Registrar. Subsection (2) authorises the Registrar to sign the will for the purposes of subs (1)(b) even after the death of the person in relation to whom the order was made.
Section 24 of the Act deals with the retention of the will deposited with the Registrar under the Act. A will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless: (a) the Court has made an order under s 18 authorising the revocation of the whole of the will, or (b) the person has acquired or regained testamentary capacity. Only on being presented with a copy of an order under s 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit.

The Conclusion

The Court must first determine whether the leave to make an application for an order under s 18 of the Act should be granted to the Plaintiff. The section provides that the Court may make an order. Section 20(1) of the Act provides that, on hearing an application for leave under s 19 of the Act, the Court may give leave and make an order under s 18 of the Act.
I am satisfied, in this case, that the Court should make an order under s 18 of the Act, the Plaintiff having given the Court the available information referred to in s 19 of the Act.
The Court must refuse leave to make an application for an order under s 18 of the Act unless the Court is satisfied of the matters in s 22 of the Act. The language of the section indicates that there are prerequisites for the exercise of the jurisdiction in question. I am satisfied that the prerequisites in s 22 have been satisfied.
I am also satisfied that there is a reason to believe that Colin is, or is reasonably likely to be, incapable of making a will. He does not have testamentary capacity.
I am also satisfied that, in the absence of any other obvious applicant, the Plaintiff is an appropriate person to make the application, and that, in the circumstances of this case, adequate steps have been taken to allow representation of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought. It is difficult, if not impossible, on the evidence, to nominate any such persons.
I am satisfied that the proposed Will is, or is reasonably likely to be, one that Colin would make if he were to have testamentary capacity and that it is appropriate to be made, in accordance with ss 22(b) and (c) of the Act.
I am satisfied that a Will, in which the Plaintiff is appointed the executor and trustee, is reasonably likely to be one that would have been made by Colin if he had testamentary capacity, as the Plaintiff is, and has been for some time, the only person, with the exception of Narelle, who was involved in Colin's life, both before and after Valerie's death, and Colin's testamentary intentions clearly indicate that he wished for the Plaintiff to take Valerie's share of the estate. The Plaintiff has a superior claim to Colin's estate given that he has been the primary person, apart from Valerie, in Colin's life.
The Plaintiff has proposed a Will in which the residue of Colin's estate be given to him absolutely if he survives by 30 days. There do not appear to be any other persons who might have a reasonable expectation in relation to Colin's bounty. There are no persons who can be considered as natural objects for provision from Colin's estate. The nephews who would take the residue of Colin's estate under the operation of the rules of intestacy appear to have had nothing to do with him for some time (if at all).
The Court has made an evaluative and intuitive judgment as to what, objectively, Colin would be reasonably likely to have decided, had he been capable of doing so, as to residue of his estate to be received by the person who appear to continue to have, the most to do with him, and who appear to have devoted care, support, and attention to him. In reaching the level of satisfaction in relation to these matters, the Court has had regard to the importance and gravity of the issues involved in this application. In all the circumstances, after considering all the available evidence and information, as has been made available, concerning Colin's actual intentions, attitudes and predispositions in the past, by reference to what is known of his relationships, history, personality and size of the estate, I am satisfied that a Will that provides for the residue of his estate to the Plaintiff would be reasonably likely to have been one made by Colin if he had testamentary capacity.
In reaching these conclusions the Court has placed weight on the fact that other persons who might possibly have a legitimate interest, to whom reference has been made, do not seek to be involved in the proceedings. The Court should exercise the discretion to make the orders sought by the Plaintiff.
The Act provides no guidance as to what should happen in relation to the costs of an application relating to a statutory will.
In determining the burden of costs, I bear in mind that the jurisdiction relied upon by the Plaintiff involves a public benefit and imposing a liability for costs in the event that the Court does not accede to an application should not discourage its invocation. In A Ltd v J (No 2) [2017] NSWSC 896, Ward CJ In Eq, at [84]-[86], wrote: "Section 18(5) of the Succession Act confers a discretion on the Court, in making an order, to give any necessary related orders or directions. This discretion extends to making an order that the costs of a statutory will application be paid out of the person's assets. Amongst the matters that the Court should take into account, in determining the appropriate exercise of the discretion, are whether the application is properly brought; and whether an order that costs be paid from the proposed testator's assets would have any detrimental impact on the proposed testator's wellbeing. It is clear that the application was properly brought and that an order that the costs of the plaintiff be paid out of the Child's estate will not impact detrimentally on the estate."
In Small v Phillips (No 3) [2020] NSWCA 24 at [3], the Court (Brereton, McCallum JJA and Emmett AJA) wrote: "Proceedings for the making of a statutory will for an incapacitated person are of a character similar to proceedings in the protective jurisdiction. Thus, there is a public interest in making a statutory will to ensure the orderly distribution of the assets of an incapacitated person on the death of such a person. Further, a person who has a legitimate interest in an application to authorise a statutory will should not be dissuaded from assisting the Court to exercise its jurisdiction in a fully informed manner by reason of concern that the person may be obliged to do so at his or her own expense. In addition, a defendant, even if unsuccessful in opposing a statutory will, should ordinarily be given his or her costs from the estate of the incapacitated person on the indemnity basis if it was reasonable to resist the claim for a statutory will."
I am of the view, in this case, that as the Plaintiff, in the Summons, seeks costs of the application, and as the application was properly brought, and has been successful, he should receive his costs, calculated on the indemnity basis, of the proceedings.
The Court: 1. Orders, pursuant to s 19 of the Succession Act 2006 (NSW), that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of the Defendant, the person lacking testamentary capacity. 2. Orders, pursuant to s 18 of the Succession Act, that a statutory Will be made on behalf of the Defendant in the terms set out in Ex. A. 3. Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed. 4. Orders pursuant to s 23(1)(b) of the Succession Act, that the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court. 5. Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the Defendant. 6. Orders that these orders be entered forthwith. 7. Orders that the directions hearing listed on 11 April 2023 be vacated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2023

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