Re The Will of Alexa

1. [1]

   HIS HONOUR: This is an application brought by the Plaintiff for the making of a will, for her daughter, under Div 2 of Pt 2.2 of the Succession Act 2006 (NSW) (the Act), which Division consists of ss 18 to 26. I shall refer, hereafter, to the daughter by the pseudonym, “Alexa”. The question for consideration is whether the Court should make an order authorising a will to be made on behalf of Alexa, she being a person who is said to lack testamentary capacity. The Court will identify other relevant persons by initial. No disrespect is intended to any of Alexa’s family members by adopting this course.

2. [2]

   The proceedings have been in the Succession List on two occasions, on each of which directions were made. As the evidence is now complete, and as there appears to be no dispute about the facts, or the law to be applied, the matter has been dealt with in Chambers, on the papers. This has been done with the consent of the Plaintiff, by her solicitor.

3. [3]

   The Summons was filed on 10 March 2020. The Plaintiff seeks an order that leave be granted to her, pursuant to s 19 of the Act, to make an application for a will on behalf of Alexa pursuant to s 18 of the Act, and also a final order, under s 18, authorising such a will in the form that the Plaintiff has provided to the Court: Ex SW1. Such a will is commonly referred to as a “statutory will”.

4. [4]

   In New South Wales, it has been held that a person who will benefit from the proposed statutory will may make the 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).

5. [5]

   Alexa is a “protected person” within the meaning of s 38 of the NSW Trustee and Guardian Act 2009 (NSW). That fact, alone, does not establish that she is, within the meaning of s 18(1) of the Succession Act, “a person who lacks testamentary capacity”: Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 380 (Powell J); Estate Cockell; Cole v Paisley [2016] NSWSC 349 at [46] (Lindsay J). However, it is a relevant consideration, and often, the fact that a person has been found incapable of managing her, or his, financial affairs provides a starting point for establishing a lack of testamentary capacity.

6. [6]

   By order of the Supreme Court made on 14 July 2005, Perpetual Trustee Company Limited (Perpetual) was appointed as the financial manager of Alexa’s estate. It continues to manage Alexa’s estate.

7. [7]

   Whilst Perpetual is not the Plaintiff, or otherwise a party to the proceedings, a senior trust manager (NP) has sworn an affidavit which was read in support of the Plaintiff’s application. In addition, as will be read, it has been served with the affidavit of the Plaintiff, the exhibits to that affidavit, and with a copy of the other affidavit, being one from Alexa’s father. Naturally, it has also been provided with a copy of the Statutory Will that is proposed to be made.

8. [8]

   Whilst the application before the Court could have been brought by Perpetual, the Court is satisfied that, in the circumstances of this case, the Plaintiff (to whom I shall refer, hereafter, as CBP), despite being the major beneficiary named in the Statutory Will is an appropriate person to make the application for an order under s 18 of the Act.

9. [9]

   Similarly, Alexa is not named as a party/Defendant in the Summons and an order is not sought that she be separately represented. As will be read, s 25 of the Act provides that if it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation.

10. [10]

    Thus, it is first necessary to consider whether Alexa, being the person who is said to lack testamentary capacity, should be separately represented in the proceedings under the Act. In the circumstances referred to above, and to which reference will be made, I am satisfied that it is not necessary to join Alexa as a separate party to the proceedings, even though there is no named contradictor. The role played by Perpetual, as her financial manager, in the proceedings, satisfies me that her interests have been more than adequately protected.

11. [11]

    Usually, close family members of the person said to lack capacity, by virtue of their relationship to that person, are likely to have an interest in being notified that an application has been made to the court concerning that person. This presumption may be displaced where the applicant is aware of circumstances which reasonably indicate that members of the family should not be notified, but that others should be notified instead. For example, where the applicant knows that the relative in question has had little, or no, involvement in the life of the person said to lack capacity, and has shown no inclination to do so, the applicant may reasonably conclude that the relative need not be notified. In some cases, the person said to lack capacity may be closer to a person who is not a relative and if so, it will be appropriate to notify her, or him, instead of family members.

12. [12]

    In this case, I am satisfied that adequate steps have been taken to allow representation of all persons with a legitimate interest in the Plaintiff’s application, including the persons who have reason to expect a gift, or benefit, from the estate of Alexa. All are persons who would, generally, be regarded as natural objects of testamentary recognition by Alexa.

13. [13]

    Because I considered the matter should not be unnecessarily delayed, the Court informed the legal representative of the Plaintiff, by email sent on Friday 8 May 2020, that the orders, as set out below, would be made, and that the Court would publish reasons subsequently. This course was followed because s 18(3) of the Act provides that the Court can only make an order under the section if the person in respect of whom the application is made is alive when the order is made.

14. [14]

    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 subsection (1)(b) even after the death of the person in relation to whom the order was made.

Background Facts

1. [15]

   I have taken what follows, in large part, from written submissions prepared by Mr A J Atkinson, solicitor, who represents CBP in the proceedings. I am most grateful to him for his detailed consideration of the relevant matters and the promptness with which he provided the written submissions to the Court.

2. [16]

   Alexa is the daughter of the Plaintiff, CBP, and PHCC. She was born in February 1992 and is now 28 years of age.

3. [17]

   Alexa suffered severe brain damage during her birth and during her hospitalisation in the post-natal period. I shall return to her medical condition later in these reasons.

4. [18]

   PHCC was born in May 1962 and is almost 58 years of age.

5. [19]

   CBP was born in April 1965 and is 55 years of age.

6. [20]

   CBP and PHCC married in April 1985. They separated in August 1993, or in 1994, and a divorce order, in respect of their marriage, was made in May 1999.

7. [21]

   In 1994, CBP commenced a relationship with AP. He was born in March 1957 and is now 63 years of age. He and CBP were married to each other in January 2001.

8. [22]

   There are two children of CBP and AP, being JP, who was born in October 1997, who is now 22 years of age, and FP who was born in June 2002, who is now almost 18 years of age.

9. [23]

   PHCC, has also been remarried, to C. There are two children of the marriage, being GCC and VCC, each of whom is an adult.

10. [24]

    Alexa has no spouse or issue. It follows that under the operation of the rules of intestacy, if both Alexa’s parents survive her, CBP and PHCC would share, equally, the whole of her estate. If only one survived, she, or he, would be entitled to the whole of Alexa’s estate. If neither CBP nor PHCC survived Alexa, her estate would pass to her siblings of the half-blood being, JP, FP, GCC and VCC, and if more than one survived her, they would each receive an equal share of Alexa’s estate. If any of Alexa’s siblings of the half-blood predeceased her leaving issue, such issue would take, equally if more than one, the share that her, or his, parent would have taken had that parent survived Alexa: see ss 128–129 of the Act.

11. [25]

    There is no evidence available to CBP of the likelihood of a claim under Chapter 3 of the Act for a family provision order out of the estate or notional estate of Alexa. (On the present information, it is difficult to see how any of the family members, perhaps with the exception of CBP, referred to, is an eligible person within the meaning of that term in s 57 of the Act.)

12. [26]

    In 2001, Alexa (by her tutor, CBP) commenced proceedings in this Court against South Eastern Sydney Area Health Service, the Central Sydney Area Health Service and Dr AF, claiming damages for injuries sustained at her birth due to professional negligence.

13. [27]

    On 20 December 2004, Alexa was awarded damages by this Court of $2,750,000, plus costs. The Court noted that Perpetual was intended to be appointed trustee for Alexa with respect to the judgment sum.

14. [28]

    As earlier stated, on 14 July 2005, this Court ordered that Perpetual be appointed financial manager of Alexa’s estate to act in relation thereto under the order and direction of the Court.

15. [29]

    In April 2017, the NSW Civil & Administrative Tribunal (NCAT) made orders appointing CBP as the guardian of Alexa, with power to decide where she could reside, what health care she should receive, to make medical or dental decisions, and to make decisions about what services were to be provided for her. PHCC consented to that appointment.

Alexa’s estate

1. [30]

   A Senior Trust Manager in the Health and Personal Injury Team, NP, who has some knowledge of Alexa’s situation, has sworn an affidavit read in the proceedings. She discloses that as at November 2019, Alexa’s estate has property with a value of about $3.17 million.

The lay evidence concerning Alexa

1. [31]

   CBP describes Alexa in the following way:

2. [32]

   Between 2001 and February 2010, Alexa lived with CBP and her family. When she turned 18 years of age, she was offered a permanent full-time residential placement in group housing provided by Ageing, Disability and Home Care, a division of what is now called the Department of Communities and Justice. She continues to live in the group house which specifically caters for Alexa’s needs.

3. [33]

   CBP also describes the care provided to Alexa by family members:

4. [34]

   PHCC acknowledges that CBP “has always had the primary care of Alexa”. He also admits that whilst he has kept in contact with Alexa, he visits her approximately four times each year. GCC and VCC “up until they left school, visited Alexa with me on at least two to four occasions each year”. PHCC’s wife, C, has “sometimes” accompanied him to visit Alexa.

5. [35]

   CBP receives from Perpetual regular fortnightly remittances of $2,500, all of which she uses for Alexa’s benefit. She does not regard the amount received as her income. This, perhaps, reflects the conclusion, which is inescapable, when one reads the uncontested evidence, that CBP has, and has had, the most significant role in Alexa’s life and that she has the closest, and most significant, relationship, with her. In reaching this conclusion, the Court does not seek to diminish the role of the other family members.

The medical evidence concerning Alexa

1. [36]

   Alexa sustained profound personal injuries at the time of her birth and in her post-natal period of hospitalisation caused by neo-natal hypoxaemia (an abnormally low amount of oxygen in the blood), and meconium aspiration (the breathing in of a mixture of meconium and amniotic fluid). As a consequence of her injuries at birth, she has permanent brain damage.

2. [37]

   A summary of Alexa’s cognitive state is found in a number of reports:

3. [38]

   From the medical reports, it is clear that Alexa lacks testamentary capacity and that there is no likelihood of her acquiring testamentary capacity.

4. [39]

   There is no subjective evidence available going to Alexa’s testamentary wishes. Alexa fits within the category of “nil capacity case” as described by Palmer J in Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22 at 57 [171]; [2009] NSWSC 530 at [171], where his Honour wrote:

Notice given and response received

1. [40]

   As stated, notice of the proceedings and of the Statutory Will proposed has been given to each of PHCC, AP, JP, FP, GCC, and VCC. Each has stated that he, or she, has no objections to the Statutory Will proposed. Indeed, PHCC has stated that he supports CBP’s application to the Court for the making of a statutory will for Alexa.

2. [41]

   Perpetual, also, does not oppose the Plaintiff’s application. NP states that “Perpetual is aware of and supports the application … for the making of a statutory Will by the Court” for Alexa. She also writes that Perpetual, having seen the proposed Statutory Will, “makes no objections to the terms”.

The Statutory Scheme

1. [42]

   As was stated by Lindsay J in Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419 at 425 [54]; [2014] NSWSC 1065 at [54], albeit in relation to a minor lacking testamentary capacity, which applies, equally, to an adult lacking testamentary capacity:

2. [43]

   As his Honour also wrote in Re M’s Codicil [2018] NSWSC 936 at [33]–[34]:

3. [44]

   I have expressed much of what follows in Re Will of Jane [2011] NSWSC 624 and in Re The Will of Bridget [2018] NSWSC 1509. I shall repeat what I wrote in those cases, with some additional principles.

4. [45]

   As stated, the sections of the Act that are relevant to the matters the subject of these proceedings, commence at s 18. They apply on, or after, the commencement of the Act, namely on 1 March 2008, 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 is no dispute that the Act may be relied upon in respect of Alexa.

5. [46]

   Section 18(1), relevantly, 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. An order under s 18 of the Act may authorise the making of a will that deals with the whole, or part, of the property of the person who lacks testamentary capacity.

6. [47]

   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.

7. [48]

   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. A will that is authorised to be made must be deposited with the Registrar, but a failure to comply with that requirement does not affect the validity of that will.

8. [49]

   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. In applying for leave, the person must give the Court the information specified in s 19(2) of the Act.

9. [50]

   That information includes:

10. [51]

    The checklist provided by s 19 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 it 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.

11. [52]

    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.

12. [53]

    The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of s 19(2) and s 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: Re Fenwick at [120] (Palmer J). This will be done to save the parties expense and time.

13. [54]

    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) of the Act. 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.

14. [55]

    Pausing there, it can be seen that the Act contemplates a two-stage procedure for the authorisation of a statutory will — first, an application under s 19 of the Act for leave to apply for an order under s 18 and, second, an application, under s 18 of the Act, for an order authorising a will to be made, in specific terms, approved by the Court.

15. [56]

    In following this procedure, 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, that limits the role of the leave application to screening out baseless or unmeritorious claims.

16. [57]

    In relation to that two-stage procedure, it should be observed, as the Court of Appeal, recently, wrote in Small v Phillips (No 2) [2019] NSWCA 268 at [151]:

17. [58]

    Section 21 of the Act, relevantly, provides that, in considering an application for an order under s 18, the Court may have regard to any information given to the Court in support of the application under s 19. 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.

18. [59]

    Section 22 of the Act, relevantly, provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that:

19. [60]

    (It can be seen that under s 18(1), 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, 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). 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).)

20. [61]

    The Court must be satisfied of each of the matters in s 22 before it can grant leave pursuant to s 19. Similarly, on hearing an application for leave the Court may, having granted leave to the applicant, only make an order under s 18 if satisfied of the matters set out in s 22: s 20(1)(b) of the Act. Section 22, however, does not demand certainty.

21. [62]

    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.

22. [63]

    In relation to s 22(d), 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.

23. [64]

    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:

24. [65]

    At [32] of the judgment, his Honour remarked:

25. [66]

    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 she, or he, 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 (Isaacs J); [1918] HCA 73.

26. [67]

    However, this concern, in the present context, is avoided by the requirement in s 22(b) that the court be satisfied that the proposed statutory will is, or is reasonably likely to be, one that would have been made by the incapable person if she, or he, had testamentary capacity. That requirement, in my view, similarly suggests a vigilant and anxious examination of the evidence as to the incapable person’s actual, or reasonably likely, intentions.

27. [68]

    On the question of representation under s 22(e), 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.

28. [69]

    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.

29. [70]

    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 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. Of course, as referred to above, Palmer J in Re Fenwick observed, at [171], that a search for any degree of subjective intention is impossible in a nil capacity case. As such, the inquiry of the Court in such cases necessarily involves an objective element. His Honour continued at [176]:

30. [71]

    However, his Honour’s remarks should not be construed as suggesting that the Court is concerned with something other than the reasonably likely intentions of the person lacking capacity.

31. [72]

    More recently, Lindsay J referred to Re Fenwick and cautioned against relying too heavily on the idea of an “objective” or “subjective” inquiry and forgetting the language of the Act. His Honour said in Secretary, Department of Family & Community Services v K at [80]–[81]:

32. [73]

    Further, in relation to the equivalent South Australian provisions, Doyle J remarked in Re K, JL [2016] SASC 53 at [53]:

33. [74]

    That much is true. Descriptions of the inquiry in nil capacity cases as “objective” do no more than reflect the reality of such cases that evidence actual subjective intention will be impossible to obtain. The Court remains concerned with subjective intention of the person lacking capacity, not with a hypothetical or reasonable person in the circumstances.

34. [75]

    If an actual intention cannot be established, then, the sub-section speaks in the chameleon-like language of reasonable likelihood. The degree of satisfaction that the phrase “reasonably likely” contemplates is difficult to discern. The phrase has a different connotation from the single word “likely”. The qualifying adverb “reasonably” requires that the word “likely” be given a meaning less definite than “probable”. It is that word (“reasonably”) which governs the standard of likelihood. It lessens the intensity of the word “likely”. In other words, quantitative guidance is suggested by the word “reasonably” whilst the word “likely” requires a qualitative judgment.

35. [76]

    As to the phrase “reasonably likely” Palmer J wrote in Re Fenwick at [152]:

36. [77]

    The Shorter Oxford English Dictionary defines “reasonably” as “sufficiently, fairly”.

37. [78]

    Although the context being considered was very different to the present, the observations of the Victorian Full Court concerning the phrase “reasonably likely” in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 are useful. At 837, Young CJ observed that “reasonably” was a qualifying adverb “which requires that the word ‘likely’ be given a meaning less definite than probable”. Marks J said of the phrase “reasonably likely” in the Freedom of Information Act 1982 (Vic), at 842:

38. [79]

    In Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31, Perram J, when considering whether documents should be produced under a notice to produce, at [4], wrote:

39. [80]

    As the Court of Appeal wrote in Small v Phillips (No 2) at [158]:

40. [81]

    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. Whilst, it seems to me, that any act done, or taken, in respect of a person who lacks capacity must be in her, or his, best interests, that is not, necessarily, the same as the inquiry referred to.

41. [82]

    What is, ultimately, required is to establish the chance of an event occurring (the proposed Will is one that is, or would have been reasonably likely to have been made, by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture. A mere possible, or potential, reflection of the incapacitated person’s intentions is not enough.

42. [83]

    There is nothing in s 22(c) that provides guidance as to what circumstances, in addition to those set out in the other 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: Re MP’s Statutory Will [2019] NSWSC 331 at [24] (Lindsay J), which inquiry is one going to the objective circumstances pertaining to that person and her estate, together with those who might have a reasonable expectation in relation to her bounty. 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.

43. [84]

    Section 22(c) 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.

44. [85]

    In relation to s 22(d), there is no definition of who may, or 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.

45. [86]

    As written above, s 18(1) of the Act provides that the Court “may … make” an order; s 20(1) provides that, on hearing an application for leave under s 19, the Court “may give leave and … make an order” under s 18; and s 21 provides that the Court “may have regard to any information” given to the Court and “may inform itself” in any manner it sees fit. Section 22, on the other hand, provides that the Court “must refuse leave” unless the Court is satisfied as to the matters set out in s 22. The question whether or not the prerequisites of s 22 have been satisfied is a factual question. The Court’s satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J); [1938] HCA 34.

46. [87]

    (I have not forgotten that the Court is not bound by strict rules of evidence and has access to “information” and also has a discretion to act on material which is rationally probative, even though excluded by such rules, provided that in all the circumstances it is proper to act on that material, and that it may be acted upon fairly as regards the parties before the Court: Roberts v Balancio (1987) 8 NSWLR 436 at 437, 440 (Hodgson J); Secretary, Department of Family & Community Services v K at [23] (Lindsay J). This does not mean, however, that the proceedings do not have an adversarial aspect, in that the court does not proceed in an inquisitorial manner but relies on the parties to adduce and test relevant evidence: Small v Phillips (No 2) at [153] (The Court).)

47. [88]

    Section 23(1) of the Act, relevantly, provides that a will that is made by an order under s 18 is properly executed if:

48. [89]

    Section 24 of the Act deals with the retention of the Will deposited with the Registrar under the Act.

49. [90]

    Section 25 of the Act, relevantly, provides that, if it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under the Division, the Court may order that the person be separately represented.

50. [91]

    I respectfully agree with the view expressed by Lindsay J in Re MP's Statutory Will at [6]–[7] that:

51. [92]

    Whilst his Honour’s decision was the subject of a successful appeal: Small v Phillips [2019] NSWCA 222; Small v Phillips (No 2), the Court of Appeal did not suggest that what was written by his Honour as stated above was in error. Indeed, the Court of Appeal wrote in Small v Phillips (No 2), at [149]:

52. [93]

    Since an order is to be made under s 18, the Statutory Will that is made must be deposited with the Registrar: s 18(6) of the Act. It is properly executed if it is in writing, and it is signed by the Registrar and sealed with the seal of the Court: s 23(1) of the Act. The Registrar must retain the Statutory Will until, relevantly, the Court makes a s 18 order wholly revoking that Will.

The Proposed Statutory Will

1. [94]

   Alexa has never made a Will.

2. [95]

   Section 20(2) of the Act authorises the Court, on the hearing of an application for leave under s 19, to “revise the terms of any draft of the proposed will”. 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.

3. [96]

   In Re Will of Jane, I wrote the following concerning the effect of s 20(2) of the Act at [63] and [68]:

4. [97]

   Prior to dealing with the matter, the Court raised a matter in the proposed draft, which entailed ensuring that the debts, funeral, testamentary, and other relevant expenses, were permitted to be paid before the calculation of the interests of each of the proposed beneficiaries. An amendment has been made.

5. [98]

   The Statutory Will (Ex SW1) provides:

6. [99]

   As stated, there is no objection by Perpetual, or any of the family members, to the terms of the Statutory Will.

Costs

1. [100]

   The Act provides no guidance as to what should happen in relation to the costs of an application for approval of a proposed Statutory Will. However, in A Ltd v J (No 2) [2017] NSWSC 896, Ward CJ In Eq, at [84]–[86], wrote:

2. [101]

   In Small v Phillips (No 3) [2020] NSWCA 24, at [3], the Court (Brereton, McCallum JJA and Emmett AJA) wrote:

3. [102]

   I am of the view, in this case, that as CBP, in the Summons, seeks costs of the application, and as the application was properly brought, and has been successful, she should receive her costs, calculated on the indemnity basis, of the proceedings.

The Conclusion

1. [103]

   The Plaintiff has suggested the relevant percentages for family members with which all of them, and Perpetual, Alexa’s financial manager express no objection. The Court has made an evaluative and intuitive judgment as to what, objectively, Alexa would have been reasonably likely to have decided, had she been capable of doing so, as to the appropriate shares in his estate to be received by the members of his family and respectfully agrees with what has been included in the Statutory Will.

2. [104]

   The Court:

   1. (1)

      Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.

   2. (2)

      Orders, pursuant to s 19 of the Succession Act 2006 (NSW) (“the Act”), that the Plaintiff have leave to apply for an order under s 18 of the Act;

   3. (3)

      Orders pursuant to s 18 of the Act, that a will be made on behalf of Alexa, the person lacking testamentary capacity, in the form set out in Ex SW1 (“the Statutory Will”);

   4. (4)

      Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal with the seal of the Court the Statutory Will, being Ex SW 1.

   5. (5)

      Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alexa.

   6. (6)

      Orders that these orders shall be entered forthwith.