Applicant Seeks Court Authorisation for Statutory Will

State Trustees Limited v Cooper (a pseudonym) [2021] VSC 712 (29 October 2021)

The propositus, having acquired brain injury and is in the end stafes of chronic kidney disease, lacks testamentary capacity.  The applicant, the administrator of the estate of the propositus seeks an order authorising a will to be made in the terms set out in Exhibit AG:1 of the affidavit of Anna Grogan sworn 15 October 2021 (the proposed will).  The Court, in deciding whether or not to make the sought orders, relied upon the requirements provided for in Wills Act 1997 s 21B. 

Facts:

Mr Jim Holland has an acquired brain injury from childhood and is in the end stages of chronic kidney disease.  His treating general practitioner, Dr Rowan Purtell, estimates that Jim is likely to die within six to twelve months.  Dr Russell Auwardt, a nephrologist who has treated Jim from 2015, considers that Jim has been less amenable to treatment and less interested in his health since his wife Elizabeth's death 4-5 years ago.  Elizabeth had a brother, Tim Moore (Tim), and a sister, Jennifer Pideski (Jenny).

Jim had two brothers, both deceased, one of whom had a son, Rick Cooper, who is the defendant (Rick).  In the event of Jim’s intestacy, Rick would be the sole beneficiary of Jim’s estate. The plaintiff, State Trustees Limited (State Trustees) was appointed administrator for Jim on 9 June 2006.  On 14 June 2019, VCAT confirmed that State Trustees should continue as administrator for Jim. 

On 13 September 2021, Tim was appointed Jim’s guardian at a VCAT hearing, but Jim makes his own day-to-day decisions.  Jim is an Alpine Health Home Care Package Client, and Ms Annalee Gardam is his case manager.   Dr Purtell states that Jim lacks competence to consent to kidney dialysis and does not understand what kidney disease is. On 22 March 2021, Jim met with his solicitor, Rebecca Healy who determined that Jim lacks testamentary capacity to make a will.

When Ms Healy explained to Jim that upon his intestacy, Rick will be the sole beneficiary of his estate, Jim became emotional.  Jim said that he would like Tim and Jenny together to receive his things.  Ms Healy stated that it appeared to her that Jim clearly did not wish for Rick to receive his estate.  Jim has approximately $265,000 in assets. 

In late 2020 or early 2021, When Ms Gardam asked Jim who he wanted his money and belongings to go to, Jim said ‘Tim and Jenny’.  Ms Gardam understood this to be a reference to Tim Moore and Jennifer Pideski.  Mr Luke Wright, a VCAT Relationship Manager employed by State Trustees, was spoken to by Ms Gardam about arranging a statutory will for Jim.  On 10 September 2021, Mr Wright spoke to Jim.  Jim told him he did not want Rick to get anything.

State Trustees, seeks an order authorising a will to be made in the terms set out in Exhibit AG:1 of the affidavit of Anna Grogan sworn 15 October 2021 (the proposed will).  On 19 October 2021, the Court made orders authorising the making of the proposed will.  The Authorised Will appoints State Trustees as executor of Jim’s Estate and leaves Jim’s estate equally between such of Tim and Jenny as survive him. 

Issue:

Whether or not the order sought by State Trustees should be granted. 

Applicable law:

Administration and Probate Act 1958 s 70ZI(3) - sets out intestacy provisions which shall govern administration of an estate should State Trustees’ application not have been granted. 

Wills Act 1997 s 21B - provides that before making an order under section 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 reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and

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

Banks v Goodfellow (1870) LR 5QB 549 (‘Banks v Goodfellow’) - provides that the established test for testamentary capacity requires the proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes and to be able to comprehend and appreciate the claims to which they ought to give effect. 

Guardianship and Administration Act 2019 - a lack of decision making capacity pursuant to this Act is not conclusive of a lack of testamentary capacity. 

Re Ballan [2019] VSC 144 - provides that where there is a paucity of evidence, the Court cannot be satisfied of what the intentions of the person would be likely to be if he or she had testamentary capacity.

Re Gillam [2016] VSC 5 - held that intentions would be likely to be, or what [their] intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what [their] intentions might be, or that some reasonable people think that it reflected what might be [their] intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be [their] intentions, if [they] had testamentary capacity.

Analysis:

Ms Healy deposed that in her interview to take instructions for a will, Jim was aware of ‘four or five moneys with the Commonwealth Bank’, but that he could not instruct her as to any other assets.  He expressed views about how he wanted his assets to pass upon his death, but did not appear to have a meaningful understanding of what it means to make a will.  Due to his childhood injury, it is possible that Jim has never had testamentary capacity.  Unlike statutory will applications made on behalf of propositi who elected not to make a will prior to losing capacity, it is likely that Jim was never in the position to make a valid will.

There is no available evidence from a time when Jim did have greater decision making capacity which might be relied upon as indicating his preferences about the disposition of his estate.  The best and only evidence of Jim’s preferences for the disposition of his estate are the views he expressed to his solicitor, service providers and physician, in a state of reduced decision making capacity.  The affidavits of Annalee Gardam, Luke Wright, Dr Rowan Purtell and Rebecca Healy depose that over the previous 12 months, Jim has repeatedly stated that he does not want Rick to inherit his belongings, and that he would like to leave his belongings to Tim and Jenny.  There is no evidence that Jim’s views regarding his estate have changed suddenly, or that he has previously held a view which is inconsistent with the Authorised Will.

Jim has a good relationship with Tim and Jenny; Tim is his VCAT appointed guardian, and has assisted in Jim’s care.  It is reasonable to expect that, if Jim had decision making capacity, he would be inclined to leave his estate to Tim and Jenny, or a combination thereof.

Conclusion:

The Court is satisfied that Jim does not have testamentary capacity.  The requirements of s 21B having been met, the Court found it reasonable to make orders authorising a statutory will in the terms proposed by the plaintiff.