Re MP’s Statutory Will

By a summons filed on 4 December 2018 and amended on 20 December 2018, the plaintiff applies to the Court: (a) pursuant to section 19 of the Succession Act 2006 NSW, for leave to apply for a court authorised will for MP; and (b) subject to a grant of leave, for an order under section 18 of the Act authorising a will to be made for MP on terms to be approved by the Court.

The proceedings have been conducted on the basis that, if leave is granted, the Court should proceed to the second stage without a further hearing: Succession Act 2006, section 20.

MP is a “protected person” within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW. That fact does not establish that she is, within the meaning of section 18(1) of the Succession Act, “a person who lacks testamentary capacity” (Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377) but it does explain the constitution, and course, of these proceedings.

The plaintiff is a grandson of MP. He is the only child of MP’s only surviving daughter, the first defendant. The second defendant is the only son of MP. He and his sister are individually joined in the proceedings in their personal capacities. Together, they are also joined as the third defendants in their capacity as joint managers of MP’s protected estate. MP herself, represented by a tutor, is the fourth defendant.

At the invitation of the Court, and without objection by any party, the NSW Trustee appears to assist the Court, and the parties, in discharge of its obligation, under the NSW Trustee and Guardian Act 2009, to monitor the management of protected estates, bearing in mind the size and complexity of MP’s estate and manifest conflicts between duty and interest which attend management of such an estate by her children.

The jurisdiction to authorise the making of a statutory will lies, conceptually, at the intersection between the protective, probate and family provision jurisdictions. An exercise of that jurisdiction may benefit from experience of those related jurisdictions, but the jurisdiction to make an order for a statutory will is governed by the legislation (Part 2.2 of Division 2 of the Succession Act) which confers it.

All parties to the plaintiff’s application for a “statutory will” acknowledge that, as governed by the Succession Act, the proceedings are in character protective of MP and that, accordingly, any determination of the plaintiff’s application must be measured against what is in the interests, and for the benefit, of MP: Re Fenwick (2009) 76 NSWLR 221 at [132]; GAU v GAV [2016] 1 Qd R1; [2014] QCA 308 at [48]; Re K’s Statutory Will (2018) 96 NSWLR 69 at [28]-[30].

In my opinion, the necessity for this approach arises because MP is a person who lacks capacity within the meaning of sections 18 and 22 of the Succession Act (applying the test of testamentary capacity usually defined by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565 upon an exercise of probate jurisdiction), not because of her formal status as a protected person: Cf, Re the Will of Bridget [2018] NSWSC 1509 at [6].

A consideration of what is in the interests, and for the benefit, of an incapacitated person may inform an assessment of his or her actual, or presumed, testamentary intentions for the purpose of the Succession Act, section 22(b). Only in an exceptional case (for example, where an incapacitated person has expressed a strong preference, albeit not altogether wisely so) might a Court be satisfied, for the purpose of sections 18(1)(a) and 22(c) of the Succession Act, that it is “appropriate” to “approve” a statutory will not in the interests of, or beneficial to, an incapacitated person: Re K’s Statutory Will (2017) 96 NSWLR 69 at [28]-[32]. The criteria for which the Succession Act provides naturally invite attention to what is in the interests, and for the benefit, of the particular incapacitated person, not as a hypothetical construct but as a known, living person.

Importance attaches to recognition of paramountcy of the welfare and interests of MP as an incapable person in need of protection (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D and 241G-242A) because: (a) with the exception of the MP’s tutor, each participant in the proceedings (that is, particularly, each of the plaintiff and MP’s two children) has a personal interest in the outcome of the proceedings; and (b) whatever hopes or expectations they may have of prospective testamentary benefits, nobody but MP has a proprietary interest in her estate.

The terms of MP’s last known will (dated 2 November 2001) do not favour her family as much as more recent expressions of testamentary intentions.

On the evidence before the Court in these proceedings, there are reasonable grounds for suspecting that that will (the original of which cannot be found) was revoked by destruction or, less speculatively, that her more recently expressed intention was, implicitly, to die intestate.

A draft will (dated 22 May 2017) prepared by professional advisers for MP favoured the plaintiff and his mother, vis a vis other family members, but MP declined to sign it and the extent to which she disclaimed its terms, vis a vis particular gifts, has been the subject of debate.

In recent years she has moved towards reconciliation of a frosty relationship with her son and his family, although the extent of that too has been the subject of debate.

In the absence of a statutory will, MP’s expression of an intention to confer testamentary benefits on identified individuals (her grandchildren, her sister and her former housekeeper) will come to nothing, as may her expressed intentions to benefit charity. With this in mind, the plaintiff invited the Court to consider making a statutory will limited (by reference to section 18(2) of the Succession Act) to part only of MP’s property for the purpose of benefitting himself, and other identified individuals, if his application for a statutory will must otherwise be dismissed.

Unless the Court can be satisfied that a proposed statutory will “is, or is reasonably likely to be, one that would have been made by [MP, if she] had testamentary capacity”, the plaintiff’s summons must be dismissed: Succession Act, section 22(b). On the other hand, unless a statutory will is authorised, there is every prospect of litigation (upon an exercise of the Court’s probate jurisdiction if not the family provision jurisdiction conferred by Chapter 3 of the Succession Act) attending administration of MP’s deceased estate and, in the interim, uncertainty which may affect the nature and extent of MP’s enjoyment of her family in her last days.

In any event, the Court’s jurisdiction does not run to authorising a statutory will to be made for MP merely because to do so would be “fair” to particular objects of her bounty, in her interests or for her benefit. The Court’s jurisdiction is marked out by the Succession Act.

These proceedings are governed by Division 2 of Part 2.2 (comprising sections 18-26) of the Succession Act, which (with emphasis added) is in the following terms:

Section 22(e) of the Succession Act has been the subject of recent amendment. Before amendment, that paragraph (with emphasis added), read:

The paragraph was amended by omitting the expression “allow representation of all persons” and by asserting instead the expression “allow representation, as the court considers appropriate, of persons with a legitimate interest”.

The word “legitimate”, alone, can be problematic in a context in which prospective beneficiaries have no property interest in an estate before the death of the person in relation to whom a statutory will is sought.

Deletion of the word “all” and insertion of the words “as the court considers appropriate” accommodates uncertainty in the unqualified expression “person with a legitimate interest”.

The word “appropriate” finds expression earlier in section 22 – in section 22(c), which requires that the Court be satisfied “it is or may be appropriate“ for an order to be made; and in section 22(d), which provides that the Court must be satisfied that an applicant for leave is “an appropriate person to make the application” before the Court – so that there is greater consistency in the section.

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 incapacitated person.

The expressions “adequate steps“, “representation”, “as the court considers appropriate” and “legitimate interest” (none of which are the subject of definition in the Succession Act) require the Court, in the context of a particular case, to consider the personal circumstances of the person in relation to whom a statutory will is sought, not limited to the interests of persons who happen to appear before the Court as parties.

Proceedings for authorisation of a statutory will (essentially protective in character) are not “interest proceedings” in any way analogous to characterisation of probate proceedings (as done in Gertsch v Roberts (1993) 35 NSWLR 631 at 634B-C) as “interest proceedings” focussing usually, if not exclusively, upon property interests of beneficiaries of a deceased estate. Protective proceedings cannot, or at least should not, be conducted otherwise than in the interests, and for the benefit, of a living person in need of protection. Other participants in such proceedings (usually family, carers, or other “significant others” in the life of an incapacitated person) do not have a property interest in the outcome of protective proceedings however hopeful they might be of personal gain.

However, protective proceedings are in their own way “interest proceedings“ in the sense that (in assessing what is in the interests, and for the benefit, of a person in need of protection) the Court generally must enquire about social relationships (“social interests“) in order to take into account the personal circumstances and preferences of the person in need of protection.

A decision about whether people within an incapacitated person’s social network should (or should not) be given notice of protective proceedings can be important to the proper determination of proceedings. Such decisions must be made with the purposive nature of the proceedings in mind. At the highest level of abstraction, the purpose of such jurisdiction is to take care of a person who, through incapacity, cannot take care of himself or herself: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259.

A need for the Court to take decisions by reference to the purpose for which its jurisdiction exists can be particularly important in the context of an application for a statutory will. On the one hand, the Court must be vigilant to protect an incapacitated person, by ensuring that an applicant is not seeking personal vantage by quietly excluding others from participation in the proceedings and, on the other hand, vigilant to ensure that the welfare and preferences of an incapacitated person are not placed in jeopardy by unnecessary publication of the proceedings or details of his or her financial circumstances. A need to accommodate these types of tension finds expression in section 22(e) of the Succession Act.

In Re the Will of Bridget [2018] NSWSC 1509 at [126]-[127] Hallen J approved observations of Millett J in Re B (Court of protection: notice of proceedings) [1987] 1 WLR 552 at 556-557 about whether notification of proceedings should be given to certain persons. The essence of those observations was to the effect that, for the assistance of the Court and in fairness to parties who may be affected by a decision of the Court, “all persons materially affected should be given every opportunity of putting their cases forward” in all but exceptional cases.

This approach contains echoes of the experience of the Court across the spectrum of protective, probate and family provision cases. On the one hand, there is a need to obtain the assistance of people “in the know”. On the other hand, even if such people have no greater property interest than an expectation of possible future benefit, a judge may feel uncomfortable about making decisions affecting even a contingent, prospective right without hearing from all potentially affected parties.

In principle, I agree that guidance about how to approach section 22(e) of the Succession Act might be had from Millet J’s observations. However, that said, questions about whether “adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest” in a statutory will application cannot be solved simply by reference to “persons materially affected”. The word “materially” begs the question.

In my opinion, the approach of Lord Eldon in Ex parte Whitbread in the matter of Hinde, a lunatic (1816) 2 MER 99; 35 ER 878 (extracted in W v H [2014] NSW SC 169 at [39]-[40]) provides a more productive insight into how to approach section 22(e), bearing in mind the protective character of statutory will proceedings.

Viewed through the prism of what is in the interests, and for the benefit, of MP, and having regard to the fact that (as contemplated by section 25 of the Succession Act) MP is separately represented in the proceedings by a tutor appointed specifically for that purpose, I am satisfied that, so far as is appropriate, adequate steps have been taken to allow representation of all persons with a legitimate interest in the plaintiff’s application: Succession Act, section 22(e).

The parties to these proceedings sufficiently represent the interests of all parties “who [to paraphrase Re Fulop, deceased (1987) 8 NSWLR 679 at 681D, a seminal family provision case] would generally be regarded as natural objects of testamentary recognition” by MP. They may be taken, between them, to have appraised the Court of potential claims on MP’s bounty by her sister, her former housekeeper (a witness relied upon by the plaintiff) and MP’s grandchildren by her son.

To involve all the charities which MP has, from time to time supported, and which, if consulted, may have an expectation of future gain would be to risk a diversion of the proceedings away from a focus on MP’s welfare and interests. It is enough to know, uncontroversially, that MP favoured particular types of programme generally associated with Jewish charities.

It is not necessary, in the present proceedings, to ensure that all persons who may have, or may have had, an interest based upon MP’s last known will (dated 2 November 2001) be given notice of these proceedings, based upon that interest, in circumstances in which there is clear evidence before the Court that, at and about the time MP became incapacitated she was ordering her affairs on the basis that she had no will and, if she did not execute a will, she would die intestate.

The fact that a person may have “reason to expect a gift or benefit from the estate” of an incapacitated person in respect of whom a statutory will is sought does not, of itself, ground an entitlement to be represented on an application for a statutory will. The object of section 22(e) of the Succession Act is not to confer a presumptive right on a potential or prospective beneficiary to be represented on the hearing of an application for a statutory will, but to facilitate inquiries by the Court as to the personal circumstances, and intentions, of the incapacitated person.

It is not beyond experience that the safety of an incapacitated person might possibly be placed in jeopardy if an expectation of personal benefit from the person’s deceased estate is aroused in a carer for whom, as a recognition of past service, an incapacitated person might reasonably be expected to make testamentary provision. In such a case, a carer might arguably be said to be a person who has “reason to expect a gift or benefit”, or even a person with a “legitimate interest” in a statutory will application. However, it would not necessarily be “appropriate” for “steps” to be “taken to allow representation” of such a person at the hearing of a statutory will application. In some cases (hopefully rare), mere notice to the carer of a prospect of personal gain beyond the norm might endanger the incapacitated person’s welfare by encouraging the carer to consult his or her own interests in performance of a duty owed to the vulnerable, incapacitated person. Section 22(e), as now drafted, confirms the primacy of the welfare and interests of the incapacitated person by requiring the Court to consider what is “appropriate” in the particular case.

Section 22 of the Succession Act mandates that the Court must refuse leave to make an application for a statutory will unless it is satisfied of five matters, the last identified of which is section 22(e).

Read in the context of the section as a whole, including particularly section 22(b), and in the context of Division 2 of Part 2.2 of the Succession Act as a whole, the proper approach to section 22(e) might be informed by the approach of the Court to an application for an allowance or a gratuity out of the estate of an incapable person.

Two interwoven strands of authority drawn from consideration of an exercise of general protective jurisdiction may be instructive. The first concerns an application by family for the payment of an allowance out of the estate of an incapable person. The second concerns a payment out of an incapable person’s estate on account of past gratuitous care.

Both find space for analogous reasoning in the present proceedings. Consistent themes in MP’s reported statements over time have been provision for family, recognition of past service and the importance of charitable benevolence.

First, on the topic of a family allowance: A seminal authority which encapsulates ideas which continue to inform the due administration of a protected estate is the judgment of Lord Eldon in Ex parte Whitbread in the matter of Hinde, a Lunatic (1816) 2 MER 99; 35 ER 878, extracted in W v H [2014] NSWSC 169 at [39]-[40].

As explained by Lord Eldon, the principle upon which the Court acts upon consideration whether an allowance for a protected person’s family should be made out of his or her estate is that the Court looks to the situation of the incapable person, always looking to the possibility of his or her recovery, and never regarding the interests of others, but focusing upon what is likely the incapable person himself or herself would do if he or she were in a capacity to act, considering what the incapable person would probably do, and what would be beneficial to him or her should be done. The Court does nothing wantonly or unnecessarily to alter the incapable person’s property, but on the contrary takes care, for his or her sake, that, if he or she recovers, he or she shall find his or her estate as nearly as possible in the same condition as he or she left it, applying the property in the meantime in such manner as the Court thinks it would have been wise and prudent in the incapable person himself or herself to apply it in case he or she had been capable.

Within the parameters of that principle, Lord Eldon recorded that the practice, upon an exercise of protective jurisdiction, was “to call in the assistance of those who are nearest in blood [in modern parlance, an incapable person’s ‘significant others’], not on account of any actual interest, but because they are most likely to be able to give information to the Court respecting the situation of the property [of the incapable person], and are concerned in its good administration.”

On the second topic (of a payment on account of past gratuitous care), notice might be taken of the following observations by McColl JA in Protective Commissioner v D (2004) 60 NSWLR 513 at [149]-[152], with emphasis added:

These observations were made in aid of construction of section 28(1)(b) of the Protected Estates Act 1983 (the forerunner of the NSW Trustee and Guardian Act 2009 NSW) which authorised the Protective Commissioner (the statutory predecessor of the NSW Trustee) to apply a protected estate towards “the maintenance, clothing, medicine and care, past and future, of the protected person”.

Returning to the text of section 22 of the Succession Act and, in particular, the requirement that the Court be satisfied that a proposed statutory will “is, or is reasonably likely to be, one that would have been made by the [incapacitated] person, if he or she had testamentary capacity“, the Court must turn attention to the possibility that it may be assisted by representation of persons who, although not a party to proceedings before it, have a “legitimate interest” in the application for a statutory will.

The following observations of Palmer J in Re Fenwick (2009) 76 NSWLR 221; [2009] NSWSC 530 at [130]-[135], with emphasis added, continue to resonate:

So far as it concerns management of an estate, the Court’s protective jurisdiction is generally “directed to administration without strife in the simplest and least expensive way“, distinguishing it from adversarial litigation which is directed to litigation of competing claims of right: HS Theobald, The Law Relating to Lunacy (London, 1924), page 382.

Palmer J’s observations provide an echo of this in his elaboration of the jurisdiction conferred on the Court by Part 2.2 Division 2 of the Succession Act.

MP is a wealthy, elderly woman who has long been divorced from her (now deceased) husband. Her estate has an estimated value of about $100 million, give or take a large margin for error. She is presently aged 90 years.

She has two surviving adult children by her former husband. She did have three children by him. – two girls and one boy – but one of her daughters died in tragic circumstances, a fact to which, one suspects, she has never quite become reconciled.

Of her two surviving children, her son has five children and her daughter has one, the plaintiff.

Until she suffered a stroke on 13 April 2018 MP appears, by nature, to have enjoyed a quarrelsome personality, given to bouts of paranoia and apparently erratic behaviour; fiercely proud of her Jewish heritage, her independence of mind, her commercial success and her reputation as a benefactor of charitable causes. Family, friends and professional advisers, all alike, have not been immune from displays of her strong personality and, occasionally, a capricious turn of mind. Those who love and admire her appear to have had sufficient cause to reflect on the adage that one sometimes loves a family member, or friend, as much for his or her faults as for any virtue.

For a long time, MP sought to control her children’s relationship with their father – even after his death. This, and other points of difference between mother and children, led to periods of estrangement or, at least, debilitating emotional tension, between them. For many years she ostracised her son and his family, blaming him for a business venture of her own which went wrong. Her relationship with her daughter was never so strained, but never quite free of rocky patches either.

MP favoured the plaintiff as her daughter’s son.

Despite appearances to the contrary from time to time, she could never quite let go of her maternal affections for her children, and her desire to bond with her grandchildren. She appears to have softened her heart towards her son and his children in the months leading up to her stroke, perhaps falling short of a full reconciliation but justifying his involvement in management of her affairs in collaboration with his sister.

In all of life’s challenges, MP now finds herself in profound need of family as a result of her loss of capacity for self-management.

On 25 March 2017 she suffered a fall which led to hospitalisation. In September/October 2017 she repeated the experience. These events, or a premonition of them, may have reminded her of her mortality as (from about the time of her first fall) she appears actively to have contemplated her testamentary arrangements. Sadly, there was more adversity to come, both in terms of personal health and the conduct of her business – objective inducements to reflection upon a succession plan.

On 13 April 2018 she suffered a stroke which seems, physically, to have been a final straw for independent living. Since that time she has been almost totally incapacitated. She resides in a nursing home. It is common ground, supported by objective evidence, that she has lacked testamentary capacity since the time of her stroke: Succession Act, section 22(a).

Having experienced vulnerability associated with hospitalisation following a fall at an advanced age, on 11 May 2017 she appointed her daughter as her enduring guardian, an appointment which was accepted by the daughter only on 27 September 2017.

Despite her declining health, MP continued to make independent decisions about her financial affairs until the time of her stroke. On 3 October 2017, she executed a deed by which she pledged to make a substantial gift of $US15 million, by three annual instalments, in favour of Israel’s Tel Aviv University. A question the subject of debate in these proceedings has been whether (if a statutory will is authorised) this gift should be brought to account in lieu of a testamentary gift to charity. Only $AUD500,000 of the promised $US15 million has been paid to date.

For several months in and about mid-2017 MP wrestled with herself, and teams of professional advisers, in what might be characterised, perhaps too grandly, as “estate planning” exercises. In essence, she was involved in a process of deciding whether (and, if so, in what terms) to make a will in anticipation of a death which, at her advanced age, could come any time.

The estate planning process was inconclusive, save that it fuelled MP’s paranoiac fear that she was being manipulated by others attracted by her wealth. Ultimately, the process produced an elaborate draft will dated 22 May 2017, which she declined to sign. Evidence that she disclaimed the draft can be found in emails she wrote on 29 May 2017, 15 August 2017 and 3 April 2018.

Those emails, in MP’s colourful style, complained that the draft will dated 22 May 2017 represented, not her testamentary intentions, but the views of others than herself.

On 29 May 2017 MP sent an email to one of her advisers to the following effect:

In two separate emails sent to another adviser on 15 August 2017, MP wrote the following in explanation of her refusal to pay a fees invoice:

On 3 April 2000, 18, MP sent another email to the same adviser, in response to an email from him terminating his retainer because MP had been unwilling to meet his last invoice and because he had not received any further instructions from her for several months. She wrote:

This last email was sent 10 days before MP, on 13 April 2018, suffered her incapacitating stroke.

In the year preceding her stroke she was told, more than once, that, if she were to die intestate, the whole of her estate would pass to her son and daughter. She appears to have been unfazed by that news. It did not demonstrably force her to execute a will of any description. That fact, in combination with MP’s expressed desire to engage with her son’s children, points, possibly, towards a reconciliation between mother and son, a desire for which both mother and son manifested with the assistance of a local Rabbi. Since her incapacitation MP has enjoyed contact with her son in the company of her daughter.

The evidence adduced at the final hearing of these proceedings included an affidavit from a solicitor who acted for MP, across a broad range of matters, from about February 2015 until MP suffered her stroke in April 2018. The solicitor’s evidence (which I accept) is to the following effect:

Although she retained personal control of her finances until the time of her stroke, a fair inference is that her capacity for an efficient conduct of business diminished over time. A prime part of her business was the subject of adverse regulatory notice in or about October 2017, with a consequence that, at the time of her stroke, she was engaged in a process of effecting a sale of business.

The commercial imperatives of that sale process led to an application by her daughter to Ward CJ in Eq, as the Duty Judge, on 4 May 2018 for orders, upon an exercise of protective jurisdiction, authorising the daughter to act as a manager of her affairs, and those of her companies.

When, in the ordinary course, those proceedings (numbered 2018/00141074) came before me on 14 May 2018 as Protective List Judge, I expressed concern about the nature and scope of the authority conferred upon the daughter having regard to the size and complexity of MP’s estate.

Upon inquiry, I was informed (as she had consistently told her estate planning advisers throughout 2017) that MP was believed to have no will; that, should she die without notice, she would probably die intestate; and that, on an intestacy, the whole of her estate would pass to her son and daughter alone.

Uncomfortable with the nature and scope of the protective orders that had been made in favour of the daughter alone, I sought and obtained the consent of the daughter and the son to their joint appointment as managers of MP’s estate, subject to the NSW Trustee and Guardian Act and, consequently, the oversight of the NSW Trustee.

Accordingly, on 14 May 2018 I made a declaration, pursuant to section 41 (1)(a) of that Act, that MP is incapable of managing her affairs; an order, pursuant to section 41(1)(a), that MP’s estate be subject to management under the Act; an order, pursuant to section 41(1)(b), that her children be jointly appointed managers of her estate, subject to the orders and direction of the NSW Trustee; and orders, by way of directions, for management of the estate. On 18 May 2018 I made a supplementary, confirmatory order to emphasise that, in management of MP’s estate, the managers were subject to directions of the NSW Trustee as well as directions of the Court.

In making these orders, I invited MP’s children, as managers of her protected estate, to work in close consultation with the NSW Trustee. I reinforced that invitation by listing the proceedings for periodic review, upon which occasions I received assurances from the managers and the NSW Trustee that MP’s estate was being managed in an orderly way.

In the course of supervising management of MP‘s protected estate, I inquired of the managers (her children) whether MP had a will and, in any event, whether consideration might not need to be given to an application for a statutory will. Orders were made directed towards discovery of any will MP might have made. I did not know at that time the extent to which any answer to questions about MP’s will would engage the mythology of Pandora’s box, a source of great and unexpected troubles.

In due course, searching through MP’s papers, her daughter unexpectedly located a copy (not the original) of MP’s 2001 will.

The managers (MP’s children) having made no application for a statutory will, the plaintiff took up the challenge on his own initiative.

In doing so, he acknowledged a personal interest motivation for his application for a statutory will. In each iteration of a proposed will advanced by him in these proceedings he is nominated as MP’s primary beneficiary, with his mother not far behind and his uncle (MP’s son) either not the object of provision or, grudgingly, the object of only comparatively modest provision.

The fact that the plaintiff stood to benefit personally from a statutory will in one or more of the forms he advanced in these proceedings does not, of itself, require a finding that (for the purpose of section 22(d) of the Succession Act) he was not “an appropriate person” to make an application for leave to apply for a statutory will. No party to the proceedings invited the Court to make such a finding.

Although, in all the circumstances of the case, I decline to grant leave for the plaintiff to make an application for a statutory will, I stop short of a finding that he was not “an appropriate person” to apply for leave.

Had arrangements not been made for separate representation of MP, I might have come to a different conclusion given the strength of potential conflict between the plaintiff’s personal interest in procuring a statutory will and a duty on his part (which his senior counsel acknowledged) to act with due regard for the benefit, and interests, of MP: See AB v CB [2009] NSWSC 680 at [13]-[14]; Re Will of Jane [2011] NSWSC 624 at [90]-[93]; Re the Will of Bridget [2018] NSWSC 1509 at [17]-[22]. It is not necessary, however, to explore that territory.

As it happens, the constitution of the proceedings substantially overcomes such, if any, controversy that may have attended a more focussed consideration of whether the plaintiff is “an appropriate person” to apply for leave to make a statutory will application. Particularly is that so in circumstances in which MP’s protected estate might be protected against the costs of the proceedings if necessary. From an early stage of the proceedings the plaintiff was on notice that he pursued them at his own risk as to costs, and no party suggests that he could not meet orders for costs if made against him.

The summons filed by the plaintiff on 4 December 2018 named as defendants each of MP’s children personally and the NSW Trustee. The amended summons filed on 20 December 2018 (pursuant to leave granted by Senior Deputy Registrar Brown on 17 December 2018) reflected a reconstitution of the proceedings. MPs’ children remained defendants in their personal capacity, but the NSW Trustee was removed as a defendant and the children were joined as “a defendant” in their capacity as joint managers of MP’s protected estate. MP, herself, was joined as a party.

Any irregularity in the reconstituted proceedings was addressed by Kunc J, as Duty Judge, by orders made in the proceedings in which protected estate management orders had been made. On 21 December 2018 his Honour authorised MP’s children, as managers of her protected estate, to participate in the statutory will proceedings (that is, these proceedings) in both their personal and representative capacities, and authorised them to appoint a tutor to act for MP in the statutory will proceedings.

It was pursuant to Kunc J’s orders that a tutor was appointed to act for MP in these proceedings, and she retained senior counsel to appear for her. Although removed as a party to the proceedings, the NSW Trustee appeared on a “watching brief”.

There may have been other (and, perhaps, more cost effective) means of constituting these proceedings, but a need for MP to be separately represented by some means or another was the critical thing. A necessity for close case management of the proceedings soon became apparent.

When, on 17 December 2018, Senior Deputy Registrar Brown granted leave for the proceedings to be reconstituted and for the amended summons to be filed, she also granted leave to the plaintiff (expressed in general terms) to issue and serve subpoenas for the production of documents, and notices to produce, returnable on a date before the date appointed for a directions hearing before me as Protective List Judge.

Pursuant to that grant of leave the plaintiff served six subpoenas and three notices to produce. In broad terms, the recipients of this court process were legal and financial advisers retained by MP to provide her with estate planning services; the NSW Trustee; and MP’s children, personally and in their capacity as protective estate managers.

By the time the proceedings came before me on 29 January 2019 a substantial mass of documentation had been produced to the Court in response to the plaintiff’s subpoenas and notices to produce. On that occasion, I made case management orders to the following effect:

In substance, the plaintiff measures what is in the interests, and for the benefit, of MP largely by reference to what he contends are her testamentary intentions. He contends that it is in her interest, and for her benefit, that a court-authorised will be made for her in terms which, if able to make her own will, she would plainly make.

On the next occasion the proceedings were before me for directions (on 21 February 2019) I made further case management orders, to the following effect:

The confidential report to court (prepared by senior counsel retained by MP’s tutor) summarised the mass of material produced to the Court in response to the plaintiff’s subpoenas and notices to produce. For present purposes, it is sufficient to note the following features of the report:

On 15 March 2019, without objection by any party, I provided a copy of the confidential report to court to the legal representatives of each party to the proceedings, and to the NSW Trustee.

On 22 March 2019 the plaintiff made an oral application for an order that he be granted access to the documents produced to the Court. It was agreed between all parties that, for the purpose of determination of that application, the whole of the material proposed to be relied upon on a hearing of the amended summons by each party (including the confidential report to court) was to be taken as being before the Court for the purpose of identifying the nature of the case to be determined at a final hearing.

On 25 March 2019 I ordered that the plaintiff’s application for access to the documents produced on subpoena and notice to produce be dismissed.

At the time of dismissing that application I delivered short oral reasons for my decision and made orders designed to facilitate an early final hearing of the proceedings.

With editorial adaptation, the reasons stated for my decision to dismiss the application for access were in the following terms:

Those reasons having been given for the decision to dismiss the plaintiff’s application for access to documents, I invited the parties to consider the possibility of their working towards a reconciliation of their divergent views about what (if any) form of statutory will might be authorised for MP, moving towards an expedited hearing of the proceedings.

In elaboration of my oral reasons for dismissal of the plaintiff’s application for access to documents produced to the Court on subpoena or notice to produce, I record the following:

The final hearing of the proceedings occupied most of 29 March 2019, by the end of which day the parties had not completed their oral submissions. Adjourned until 2 April 2019, the proceedings occupied the afternoon of that day, at the end of which judgment was reserved.

The evidence adduced at the final hearing included several affidavits sworn by the parties; an affidavit sworn by MP’s former housekeeper; an affidavit sworn by the solicitor (earlier identified) who had been retained to act for MP over several years; and, in an edited form (responsive to evidentiary objections taken on behalf of the plaintiff), the report to court prepared by MP’s senior counsel. The plaintiff sought, and was granted, leave to cross examine the solicitor. Otherwise, there was no cross examination.

In addition to extensive oral submissions, the Court had the benefit of written submissions from each of the parties, as well as several alternative forms of proposed will prepared in response to lively debate during the course of the hearing.

No form of proposed will brought forward for examination in the proceedings (including one prepared by MP’s tutor at my invitation) attracted support across the spectrum of interested parties (essentially, the plaintiff and the two children of MP) sufficient to provide to the Court comfort as to a factual finding about MP’s actual, or presumed, testamentary intentions necessary to be made for the purpose of the Succession Act, section 22(b). Each proposal for a statutory will was the subject of effective criticism directed towards undermining its plausibility as an expression of MP’s testamentary intentions.

The Court’s jurisdiction to authorise the making of a statutory will does not depend upon unanimity of views about an incapacitated person’s testamentary intentions. Although proceedings for a statutory will are essentially protective in character, a complete absence of an adversarial contest is not a prerequisite for a court-authorised will. Nevertheless, accumulated experience suggests that the absence of (at least) a broad consensus within an incapacitated person’s “family circle” about his or her testamentary intentions invites caution in an assessment of conflicting evidence proffered to the Court. If a statutory will is to be for the benefit, and to serve the interests, of an incapacitated person it not uncommonly does so by bringing to his or her affairs not only a sense of good order but, often more importantly, harmony in personal relationships.

The absence from these proceedings of any community of views about MP’s actual, or presumed, testamentary intentions is a striking feature of the case, a warning to hasten slowly to any attribution of a particular state of mind to MP.

The large forensic task enthusiastically undertaken by the plaintiff was to persuade the Court that the 2017 draft will, or some modification of that draft, truly represents (as required by section 22(b)) a testamentary instrument that “is, or is reasonably likely to be, one that would have been made by [MP, if she] had testamentary capacity”.

He approached that task with an adversarial commitment that included affidavit evidence of statements made by MP to him of an intention to confer very substantial benefits on him, reinforced by evidence of his close personal relationship with MP. That evidence is not without corroboration, but it falls short of what is required to satisfy section 22(b).

A core problem for the plaintiff is that, objectively, MP deliberately declined to sign the 2017 draft will and, warned that a failure to execute a will would result in an intestacy, she deliberately refrained from signing any will, apparently content to embrace or risk an intestacy. At about the same time as she stepped back from the will making process, she formally pledged herself, by deed, to give a substantial part of her wealth ($US15 million) to an overseas charity, a pledge which (if honoured) would substantially diminish her estate. That gift demonstrates that she did not lack the will to act decisively if and when her mind was made up. It stands in contrast to her deferral of plans to make a will, indicative of unsettled testamentary intentions.

In combination, her disavowal of the 2017 draft will; her disinclination to sign any alternative form of will; her apparent acceptance that, absent a newly executed will, she would die intestate; and her contemporaneous pledge to charity, all operate, objectively, as impediments to any satisfaction by the Court that a particular, proposed will “is or is reasonably likely to be” one that would have been made by MP if she had testamentary capacity. A further factor operating in the same direction can be found in doubts expressed by MP about whether conferral of substantial benefits on the plaintiff, beyond the assistance she had to that time provided to him, was wise.

On the evidence viewed as a whole, I cannot be satisfied (as I must be) of the element of “intention” for which section 22(b) provides.

That lack of satisfaction cannot be overcome by focusing attention on particular gifts to particular, prospective beneficiaries rather than confining attention to proposals for testamentary disposition of the whole of MP’s estate. Certainly, some consistency can be found in expressions of an intention attributed to MP to confer testamentary benefits on the plaintiff, other grandchildren, her daughter, her sister and her former housekeeper. However, the fact remains that MP deliberately refrained from executing any form of will, she contemplated an intestate death as a realistic outcome, and she pledged a substantial part of her estate to a beneficiary outside the family.

Senior counsel for MP went so far as to submit that, based on evidence of MP’s acceptance that, were she to die “today”, she would die intestate, it is open to the Court to authorise the making of a statutory will limited in its terms to revocation of any and all prior wills or, accepting the agreed consequences of an intestacy, providing for the whole of MP’s estate to pass to her two children.

Such a determination, coupled perhaps with a per stirpes provision in favour of MP’s grandchildren, could well be characterised as beneficial to MP as well as to her family. It would eliminate the risk to family members of a probate suit in which, contrary to current expectations, MP’s 2001 might be admitted to probate.

Nevertheless, the problem remains of how to be satisfied of the section 22(b) requirement.

Elimination of risk to the expectations of family members is not, of itself, a factor material to a determination of these proceedings. In their totality, the mandatory provisions of section 22 of the Succession Act require the Court to respect the autonomy of MP (even her indecision and conflicted state of mind) in the absence of any clear way forward in giving effect to an actual, or presumed, testamentary intention. Wisdom and prudence combine against any temptation to have the Court substitute its judgment (for what is in the interests, and for the benefit, of MP) for her own judgement about these things. The jurisdiction of the Court to sanction testamentary gifts on behalf of MP is not at large; it does not extend to gifts which cannot comfortably be characterised as ones which MP would have made if she had testamentary capacity.

The Court can only authorise the making of a statutory will if, amongst other requirements, it is satisfied of the criterion for which section 22(b) provides. In my opinion, no proposed form of will proffered for consideration satisfies this criterion, not even one directed towards giving testamentary expression to an intention to embrace an outcome equivalent to an intestacy. No testamentary intention attributed to MP is, or is reasonably likely to be, more likely than any other. That finding is, of itself, fatal to the plaintiff’s application: In the Will of Jane [2011] NSWSC 624 at [81]-[83]; Burns v Estate of Burns (a Protected Person) [2013] NSWSC 1550; 11 ASTLR 362 at [38]-[39]; Re the Will of Bridget [2018] NSWSC 1509 at [99]-[112]; Boulton v Sanders [2004] 9 VR 495; [2004] VSCA 112 at [109].

A further, equally fatal finding is that I am not satisfied that (within the meaning of section 22(c) of the Succession Act) “it is or may be appropriate” for an order to be made granting leave to make an application for a statutory will.

There are two particular reasons for my lack of satisfaction on this point:

If I were otherwise satisfied that a statutory will could, and should, be authorised I would not regard the possibility of applications for family provision relief (under Chapter 3 of the Succession Act) after MP’s death as an impediment to the making of a statutory will. The plaintiff submitted, and nobody disputed, that any and all persons who may be eligible to make a family provision application in relation to MP’s estate are sufficiently wealthy to make such an application unlikely. Partial confirmation of this may be the fact that, in 2011, MP caused her two children to be bought out of a family company for $4 million each.

Given that I am not satisfied:

Accordingly, I ORDER that the plaintiff’s amended summons be dismissed.

I will allow the parties an opportunity to be heard on the question of whether any (and, if so, what) orders for costs should be made.

In accordance with the practice of the Court upon an exercise of protective jurisdiction, orders for costs do not ordinarily “follow the event” but are made, or not, in response to the question, “What, in all the circumstances, is the proper order for costs to be made?”: see Civil Procedure Act 2005 NSW, section 98; Uniform Civil Procedure Rules 2005 NSW, rule 42.1; CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640 E-F; Re K’s Statutory Will (2017) 96 NSWLR 69 at [14]-[18].

This question gives due recognition, inter alia, to the fact that the Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made.

In the circumstances of the present proceedings, if the plaintiff is to avoid any orders for costs being made against him on the basis that costs should follow the event, the forensic challenge for him is to explain why any of the defendants, the NSW Trustee or the estate of MP should be required to bear the burden of proceedings commenced, and prosecuted, by him substantially for his own personal advantage, albeit with an acceptance of the protective character of the proceedings.