Re DH: application by JE and SM [2011] ACTSC 69 (4 May 2011)

Last Updated: 18 May 2011

RE DH: APPLICATION BY JE AND SM

[2011] ACTSC 69 (4 May 2011)

WILLS AND PROBATE – Wills Act 1968 (ACT) – Part 3A – testamentary capacity – application to authorise creation of a statutory will – application successful

Wills Act 1968 (ACT), ss 16A, 16B, 16C, 16E, 16F, 32, Part 3A

Family Provision Act 1969 (ACT)

Guardianship and Management of Property Act 1991 (ACT)

Succession Act 2006 (NSW)

Re Fenwick: Application of Fenwick [2009] NSWSC 530

No. SC 226 of 2011

Judge: Master Harper

Supreme Court of the ACT

Date: 4 May 2011

IN THE SUPREME COURT OF THE )

) No. SC 226 of 2011

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JE AND SM AS GUARDIANS OF DH

Plaintiffs

ORDER

Judge: Master Harper

Date: 4 May 2011

Place: Canberra

THE COURT ORDERS THAT:

1. pursuant to section 16C of the Wills Act 1968 the applicant be granted leave to apply for an order under section 16A of the Act.

2. pursuant to section 16A and 16F of the Wills Act the Registrar make a will in the form of Annexure “A” to the originating application on behalf of the respondent.

3. the will of the respondent be deposited with the Registrar pursuant to sections 16A(6) and 32 of the Wills Act.

4. sealed copies of the order of the court be served on the ACT Civil and Administrative Tribunal and on the Public Trustee of the Australian Capital Territory.

1. I suspect that it is not generally known within the legal profession, let alone the community at large, that since April 2010 the ACT Supreme Court has had the power to make an order authorising a will to be made for a person who does not have testamentary capacity. This is the first application under the amendments to the Wills Act 1968 (ACT) conferring this power.

2. The new Part 3A of the Wills Act deals with court-authorised wills for people without testamentary capacity. Section 16A provides that the Supreme Court may, on application, make an order authorising a will to be made or altered, in terms approved by the court for such a person. The person must be alive when the order is made.

3. Section 16B provides that an application can be made for such an order only with the leave of the court. The applicant is required to provide the court with a considerable amount of background information supporting the application and explaining the reasons for making it. The court must be satisfied that the subject person does not have testamentary capacity, and must be given a reasonable estimate of the size and makeup of the person’s potential estate. The applicant is required to make a diligent attempt to identify anyone who might be entitled to claim against the estate if the person were to die intestate. The court must also be told about anyone who might have a claim under the Family Provision Act 1969 in the event of the person’s death.

4. The applicant is to provide to the court a draft will. The court must be satisfied that the will is reasonably likely to be one that would have been made by the person if he or she had been capable of making a will. The court must also be satisfied that the applicant is an appropriate person to make the application, and that adequate steps have been taken to allow representation of everyone with a legitimate interest in the application. The court may make changes to the draft will provided by the applicant.

5. The scheme of the legislation is that once the court grants leave and makes an order authorising a will to be made in specified terms, the will is taken to have been properly executed when it is signed and sealed by the Registrar. The original will must be kept with other wills deposited with the Registrar under the Act, with details entered in an index which is available for search by the public.

6. Part 3A of the Wills Act is in identical, or at least very similar, terms to provisions in the Succession Act 2006 (NSW), which had been recommended by the NSW Law Reform Commission in a 1992 report. The first applications for authorisation of statutory wills under the NSW legislation were the subject of a judgment by Palmer J, Re Fenwick: Application of Fenwick [2009] NSWSC 530, in which His Honour set out in considerable detail the history of the development of the law which culminated in the amendments. I gratefully adopt His Honour’s detailed analysis of the legislation and the principles to be applied in determining applications under the legislation.

The present application

7. The application is about a man in his late sixties who, for want of a more obviously appropriate expression, and to preserve the anonymity of the family, I shall call the respondent.

8. So far as anyone has been able to determine, the respondent has never been married or fathered any children. In 1990 he commenced a de facto relationship with the applicant, a lady a few years younger than him and long divorced, with three children. They had been living together for not much more than a year when he had a heart attack while jogging, resulting in permanent brain damage. He was then fifty, retired from the public service, and managing some rental properties which he owned. It seems likely that the applicant and the respondent would have married had this catastrophe not befallen them.

9. For the next twelve years the applicant lived with the respondent and looked after him as a carer. In the words of his general practitioner, he was left permanently disoriented in time and place, and incapable of learning new information or remembering day-to-day events. He became incapable of managing his personal and financial affairs, with no decision-making capability. He has a complete lack of understanding of the value of his assets, no knowledge of any relatives, and a complete inability to comprehend future events or possibilities.

10. Eventually his care became too much for the applicant. For the last seven years he has lived in a secure dementia ward in a retirement village in Canberra. The applicant continues to see him frequently and regularly.

11. The applicant and her daughter are plenary guardians and managers of the respondent as a protected person, pursuant to orders made under the Guardianship and Management of Property Act 1991 (ACT), most recently by the ACT Civil and Administrative Tribunal in March 2009.

12. The respondent’s investment properties have been sold. His assets are now in the form of allocated pensions and trust investments, managed through an investment adviser instructed by the applicant and her daughter. The present value of his assets is of the order of $1.1m. The investments generate income from which the applicant meets the expense of his care and accommodation, presently costing some $84,000 a year.

13. The respondent was born in the United Kingdom and migrated to Australia in about 1964. He was an only child. His parents migrated to Australia in the early 1980s. They lived in rural Victoria, but both died many years ago.

14. The applicant has engaged a genealogist in England, who has gone to considerable lengths to construct a family tree for the respondent. No living relatives who might take on intestacy have been identified. It is clear that the respondent had no contact with any relatives for many years, if at all, since he migrated to Australia.

15. The devotion shown to the respondent by the applicant speaks for itself. I have no doubt that, if he had the capacity to make a will, he would be motivated to make a will along the lines of the will drafted by the applicant’s solicitors. The draft will appoints the applicant and her daughter as executors, and leaves his estate to the applicant, or, if she fails to survive him, to her children in equal shares, with gifts over to her grandchildren in the event that any of her children does not survive him. The will is otherwise in conventional form, conferring wide but appropriate powers upon the executors.

16. I am satisfied of the matters set out in 16E of the Wills Act. I am satisfied that leave should be granted to the applicant to make the present applicant, and that the application should be granted. I make the orders sought in the originating application.

17. I acknowledge the assistance of an excellent paper by Mr T F Meagher presented at a conference in November 2009 on statutory wills under the NSW Act, equally applicable to the ACT legislation which came into effect a year ago. Mr Meagher is a solicitor with considerable expertise in relation to wills and succession, and a former partner in the firm acting for the applicant.

18. I also commend the solicitors for the applicant for the documentation in this matter, which would well serve as a model for the application and supporting affidavits which

will be appropriate on the rare occasions when an application of this kind comes before the court.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 4 May 2011

Counsel for the plaintiff: Mr K A Bradley

Solicitors for the plaintiff: Bradley Allen

Date of hearing: 29 April 2011

Date of judgment: 4 May 2011