Re the Will of Elizabeth (a pseudonym) [2025] ACTSC 299 (15 July 2025)

Legislation Cited: Administration and Probate Act 1929 (ACT) Family Provision Act 1969 (ACT) Succession Act 2006 (NSW) Wills Act 1968 (ACT), ss 16A, 16B, 16C, 16D, 16E Cases Cited: Fenwick Re; Application of JR Fenwick & Re Charles [2009] NSWSC 530; 76 NSWLR 22 Re DH: application by JE and SM [2011] ACTSC 69 Re the Will of Clara (a pseudonym) [2023] ACTSC 86 Small v Phillips (No 2) [2019] NSWCA 268; 18 ASTLR 608 Parties: Elizabeth (a pseudonym) (Applicant) Representation: Counsel J Draaisma (Applicant) Solicitors Collaery Lawyers (Applicant) File Number: SC 79 of 2025 MULLER AJ: Introduction

1. The application seeks authorisation for the making of a will for a person (Elizabeth) who is without testamentary capacity.

2. Elizabeth suffers from severe physical and intellectual disabilities as a consequence of hypoxic brain damage occurring at the time of her birth. She is now aged 26 years. Her injuries occurred in circumstances that resulted in a claim for medical negligence, which was resolved by consent in 2008.

3. The substantial settlement proceeds were used in part for the construction of a purpose-built home for Elizabeth, her mother and her sister. The remaining balance of funds is maintained in a trust managed by two chartered accountants, one of whom is also Elizabeth's litigation guardian in this proceeding. That fund presently amounts to well in excess of $6 million dollars.

4. The application proceeded before me on 20 June 2025. In addition to the comprehensive material provided to the Court and the helpful and detailed written submissions of the applicant’s solicitor, I requested an affidavit from Elizabeth’s sister confirming her consent to the proposed will. An affidavit from Elizabeth’s sister was subsequently received on 11 July 2025. Orders were subsequently made in chambers on 11 July 2025 and these are the reasons for the orders made.

5. At the request of the family, in these reasons I refer to the applicant by the pseudonym, “Elizabeth”.

The court’s power to make a will

6. Section 16A of the Wills Act 1968 (ACT) (the Act) enables the court to make an order, inter alia, for the making of a will for a person who does not have testamentary capacity.

7. A detailed exposition of the history of statutory wills in the UK and Australia, and an analysis of some of the challenges associated with them, particularly in the context of persons who, like Elizabeth, have never had capacity, is found in the decision of the Supreme Court of New South Wales in Fenwick Re; Application of JR Fenwick & Re Charles [2009] NSWSC 530; 76 NSWLR 22 (Re Fenwick). That decision has been cited with approval in this Court: Re the Will of Clara (a pseudonym) [2023] ACTSC 86 (Re Clara) at [3]; Re DH: application by JE and SM [2011] ACTSC 69 at [6].

8. Section 16B of the Act mandates that the court’s leave is required for the making of an application for an order under s 16A. It also sets out the information required in support of an application for leave at s 16B(2): 16B Information required in support of application for leave (1) A person may apply for an order under section 16A only with the Supreme Court’s leave. (2) On an application for leave a person must, unless the Supreme Court otherwise directs, give the court the following information: (a) a written statement of the general nature of the application and the reasons for making it; (b) satisfactory evidence that the person for whom the order is sought does not have testamentary capacity; (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person for whom the order is sought; (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the court’s approval; (e) any evidence available to the applicant of the wishes of the person for whom the order is sought; (f) any evidence available to the applicant of the likelihood of the person for whom the order is sought acquiring or regaining testamentary capacity; (g) any evidence available to the applicant of the terms of any will previously made by the person for whom the order is sought; (h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any people who might be entitled to claim on the intestacy of the person for whom the order is sought; (i) any evidence available to the applicant of the likelihood of an application being made under the Family Provision Act 1969 in relation to the property of the person for whom the order is sought; (j) 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 for whom the order is sought; (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person for whom the order is sought might reasonably be expected to make by will; (l) any other facts of which the applicant is aware that are relevant to the application.

9. I am satisfied that the affidavits now filed address all of the information requirements contained in s 16B(2).

10. Section 16E then sets out certain matters of which the court must be satisfied before proceeding to grant leave to make an application for an order under s 16A: 16E Court must be satisfied about certain matters The Supreme Court must refuse leave to make an application for an order under section 16A (Court may authorise will to be made, altered or revoked for person without testamentary capacity) unless the court is satisfied that— (a) there is reason to believe that the person for 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 of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person for whom the order is sought. The will

11. The proposed statutory will is in the following relevant extracted terms: 2. PROVIDED she survives me by thirty (30) days I APPOINT my [mother] as my executor and trustee (hereinafter called “my executor”) and I GIVE her all my estate for her own use and benefit absolutely. 3. IF my [mother] does not so survive me I APPOINT [my sister] as my executor and trustee (hereinafter called “my executor”) and I GIVE her all my estate for her own use and benefit absolutely. BUT IF [my sister] is unable or unwilling to act as my executor and trustee I APPOINT MARNIE BRAITHWAITE and DANIEL GEUS [chartered accountants for the applicant] as my executors and trustees (hereinafter called “my executors”) and I GIVE all my estate equally to such of the issue of [my sister] and if more than one equally as survive me and attain the age of twenty-one (21) years. 4. IF all of the above trusts fail I APPOINT MARNIE BRAITHWAITE and DANIEL GEUS as my executors and trustees (hereinafter called “my executors”) and I GIVE them all my estate to divide as follows: a. I GIVE one-fifth of my estate to [my sister’s husband]. b. I GIVE the rest and residue of my estate to the Authorised Treasurer or the appointed Financial Controller of the Sikh Takhat Sachkhand Sri Hazur Sahib Temple at Gurudwara Road, Yatri Niwas Rd, Nanded, Maharashtra 431601 India to be used for the purpose of alleviating poverty among those who are within the pastoral care of the Temple.

Addressing the s 16E requirements

Is there reason to believe that the person for whom the order is sought is, or is reasonably likely to be, incapable of making a will?

12. There is no doubt that Elizabeth has no capacity to make a will. In a report dated 11 September 2024 her general practitioner Dr Guirguis expressed the view that Elizabeth: … will never develop adult cognitive faculties necessary for understanding the value of her estate, making a will, or differentiating between competing interests in the context of estate planning. He described her as requiring full-time care and being entirely dependent on her family for daily activities. I accept the doctor's opinion.

Is the proposed will one that it is reasonably likely the person would have made if she had testamentary capacity?

13. The term “reasonably likely” was interpreted by Palmer J in Re Fenwick at [152] to mean, “a fairly good chance that it is likely”. In giving consideration to the comparable provision in NSW under the Succession Act 2006 (NSW), the NSW Court of Appeal stated in Small v Phillips (No 2) [2019] NSWCA 268; 18 ASTLR 608 at [158]: Section 22(b) draws a distinction between a will that would have been made by an incapable person, on the one hand, and a will that is reasonably likely to be a will that would have been made by the incapable person, on the other. 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 1 intentions of the incapacitated party. (Emphasis in original.)

14. The use of the phrase “reasonably likely” imports some flexibility into the process of assessing what may have been the intentions of the incapable person.

15. As Palmer J observed in Re Fenwick there is a considerable element of artificiality in addressing this question in a case where the person concerned has always lacked capacity since birth and in respect of whom it is impossible to glean any sense of what their testamentary intentions may have been. In these circumstances Palmer J described the question as one to be addressed objectively.

16. Elizabeth has received her primary care since birth from her mother and her sister. Her care needs are constant and the provision of that care by the identified family members has undoubtedly come at significant personal cost in terms of the loss of some of the

1 See Re Fenwick at [154]. personal freedoms they each may have anticipated, but for Elizabeth's injury. Elizabeth has no other immediate family members and her extended family has not been involved in the provision of nursing, therapeutic or medical support for her. Viewed objectively, Elizabeth's mother and sister are plainly people who Elizabeth might reasonably be expected to want to benefit from her will.

17. Confronted with a similar fact situation in Re Clara, McWilliam AsJ (as her Honour then was) observed at [23]: Clara’s complex needs and family circumstances are the overriding considerations in assessing whether there is a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor in question, would make such a will.

18. I am satisfied that the proposed will is one that is reasonably likely to have been made by Elizabeth if she had testamentary capacity.

Is it appropriate for the order to be made?

19. The proposed will, in providing for Elizabeth's mother as the first-tier beneficiary and for her sister as the second-tier beneficiary, follows the laws of intestacy that would otherwise apply in the absence of a will. While that is a comfort in terms of the suitability of the course which is proposed, it raises a question as to the necessity for the will.

20. The written submissions of the applicant point to the certainty that follows the creation of a will as opposed to intestacy, particularly in the event that the gifts to the first, second and third-tier beneficiaries fail. In that event the will provides for one fifth of Elizabeth’s estate to pass to the husband of her sister, with the balance gifted to a temple in Maharashtra, India. As Elizabeth’s sister’s husband is neither an eligible person under the Family Provision Act 1969 (ACT), nor next of kin under the Administration and Probate Act 1929 (ACT), the provision for him as a fourth-tier recipient appears reasonable and appropriate given the familial relationships.

21. The gift of the residue to the temple in India is consistent with the cultural and religious background of the family. Elizabeth has visited the temple in question on several occasions and the charity that operates it has a mission of alleviating poverty that is entirely consistent with the family’s religious beliefs. In written submissions the applicant noted that: The temple holds spiritual significance for the plaintiff’s family, and a gift to it would be a meaningful alternative to intestacy if no immediate relatives survive.

22. The trustee also points to the lack of certainty in terms of trust management were Elizabeth to pass away, as neither of the trust documents before me may make provision for Elizabeth’s assets in the event of her death.

23. I am satisfied that it is appropriate for the order to be made.

Is the applicant for leave an appropriate person to make the application?

24. The application is made by Elizabeth, acting through her litigation guardian; that person also holding the position as one of the trustees of the trust fund created for Elizabeth's benefit from the settlement proceeds of her litigation. In that capacity, the litigation guardian does not benefit personally from the outcome of the application, is well placed as a person acutely aware of the challenges of managing the subject trust, particularly in the event of intestacy, and is also independent of those who stand to benefit from the creation of a statutory will.

25. The applicant by her litigation guardian has the benefit of legal advice. Noting that any other persons who may have been in a position to bring this application on behalf of Elizabeth are also prospectively beneficiaries of the will, I am satisfied that the applicant for leave, who is in effect Elizabeth’s trustee rather than Elizabeth, is an appropriate person to make the application.

Have adequate steps been taken to allow representation of all people with a legitimate interest in the application?

26. Those persons who may have had reason to expect a gift or benefit from the estate are Elizabeth's mother and her sister. Both are aware of and have consented to the application being made.

27. I am therefore satisfied that adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from Elizabeth’s estate. Conclusion

28. As each of the requirements of s 16E have been satisfied, there is no basis upon which to refuse leave to make an application for an order under s 16A. It is therefore appropriate that leave is granted.

29. The decision to make an order under s 16A authorising the making of a statutory will is informed by s 16D: 16D Hearing of application for order In considering an application for an order under section 16A (Court may authorise will to be made, altered or revoked for person without testamentary capacity), the Supreme Court— (a) may have regard to any information given to the court under section 16B (Information required in support of application for leave); and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence.

30. For the reasons given above I am satisfied that in this case, the information provided by the applicant in accordance with s 16B constitutes all of the relevant information necessary for the purpose of making a decision under s 16A. I am satisfied that the prerequisites for exercise of the jurisdiction are met.

31. On the basis that: a. the proposed will is one that Elizabeth would have been reasonably likely to make if she had testamentary capacity; and b. the making of the will provides greater certainty in the management of her affairs; I consider this to be a matter in which it is appropriate to make an order authorising the making of a will in accordance with s 16A.

Orders

32. The orders made by the Court on 11 July 2025 were as follows: (1) Pursuant to s 16C of the Wills Act 1968 (ACT) the applicant is granted leave to apply for an order under s 16A of the Act. (2) Pursuant to s 16A of the Wills Act 1968 (ACT) the making of a will in the form of annexure A to the affidavit of Marnie Braithwaite affirmed on 5 June 2025, is authorised. (3) Pursuant to s 16F of the Wills Act 1968 (ACT) the Registrar is directed to sign and seal with the seal of the Supreme Court the will made pursuant to order 2.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 15 July 2025