Re The Statutory Will of Rolf Huenerjaeger

HIS HONOUR: By Summons filed on 11 June 2020, the Plaintiff, Raymond Charles Bryant, brings an application for an order authorising a will to be made on behalf of his long-term friend and partner, Rolf Huenerjaeger, under Div 2 of Pt 2.2, of the Succession Act 2006 (NSW) (the Act). In accordance with ss 18 to 26 of the Act, the Plaintiff seeks, inter alia, that leave be granted to him, under s 19, to make an application, on Rolf’s behalf, under s 18 of the Act, and an order that the terms of the proposed Will, as set out in Annexure “A” to the Summons, be authorised under s 18 of the Act.

I shall return to the terms of the proposed Will later in these reasons. I shall also refer to the proposed testator and members of his family, after introduction, with no disrespect, or familiarity, intended, and for convenience, by his, or her, first name.

The matter was in the Succession List, first, on 26 June 2020. Initially, I formed the view that the matter could be dealt with in Chambers, but my view changed on considering the evidence that had been filed. It was re-listed before me, administratively, on 8 July 2020. Mr L J Ellison SC appeared for the Plaintiff.

On that occasion, the Plaintiff was directed to deliver to my Chambers any further affidavits, together with any written submissions, upon which he intended to rely. I indicated that subject to reading the further evidence, I would consider whether the matter could be determined on the papers, and if so, would determine the matter in this way. Mr Ellison SC did not object to the course that I proposed.

I also raised with Mr Ellison SC, the need for a contradictor, but he submitted, and satisfied me, that, in the circumstances of the case, no contradictor was required.

The matter was re-listed on 17 August 2020. Shortly prior to that date, a request was made to adjourn the matter for two weeks to enable the evidence to be filed and submissions to be lodged. With some hesitation, the matter was adjourned until 31 August 2020. Submissions were received on 18 August 2020.

On 31 August 2020, the matter was again listed in the Succession List. Mr Ellison SC, again, appeared. He indicated that he did not wish to supplement the written submissions, orally, and that there was no additional evidence upon which the Plaintiff wished to rely.

I informed Mr Ellison SC, at least in broad terms, of the orders, which I intended to make and indicated that I would make orders and publish the reasons shortly. What follows are the reasons why the Court should give leave to, and allow, the Plaintiff’s application for leave to proceed as an application for an order under s 18 of the Act. However, in hearing the application for leave, I stated that, in accordance with s 20(2) of the Act, I would revise the terms of the draft of the proposed Will for which the Court’s approval was being sought.

The Plaintiff filed two affidavits, one affirmed on 11 June 2020, comprising 24 paragraphs, and several annexures, and the other affirmed on 28 July 2020, comprising 5 paragraphs, and several annexures. (Subsequently, at my request, a transcript of a number of the annexures, which were difficult to read, were provided to the Court on 29 July 2020.)

The Plaintiff also relied upon an affidavit, affirmed on 23 July 2020, of his cousin, John Leslie Bryant, comprising 7 paragraphs. Finally, he relied upon an affidavit, affirmed on 18 August 2020, of his solicitor, Mr D D Spencer, to which was annexed copy correspondence passing between his firm and Dr Xinsheng Liu, a Geriatrician and Consultant Physician. I shall return to the contents of the letter dated 28 July 2020 from Dr Liu.

None of the deponents was cross-examined.

Rolf was born in December 1942 in Germany. He is presently 77 years of age. He was not named as a party to the proceedings.

The Plaintiff was born in September 1929. He is presently almost 91 years of age.

Rolf and the Plaintiff have lived together since 1965, and continue to do so. Since April 2019, they have resided, together, in an aged care facility. They met in about 1963, while Rolf was operating the bar at a German restaurant in Sydney. Sometime thereafter, he became employed as Chief Flight Attendant, with Qantas, in which position he continued until his retirement in 2001. The Plaintiff was also employed by Qantas, as a clerk. He had retired, after 40 years of service, in 1990.

In about 1963, Rolf and the Plaintiff rented a flat together in Neutral Bay. Thereafter, they moved into the home of the Plaintiff’s parents, situated in Chatswood, in order to save money to buy a strata home unit.

In 1966, they purchased a unit, then under construction, in Waverton.

In 1976, they purchased a town house, then under construction, in Waverton.

Using their shared financial resources they acquired those properties and other assets, which, the Plaintiff says, they regarded as joint property, notwithstanding how title to them may have been held. They shared the repayments of the debts secured on the properties by the mortgages, and the running expenses of both properties.

A Schedule of Assets, with estimated values, forms annexure “B” to the affidavit of the Plaintiff, affirmed on 11 June 2020. In that Schedule, he set out his own assets, the assets held by Rolf, as well as their jointly held assets.

Rolf’s assets, and the estimated value of each, may be summarised as follows:

It is clear that Rolf’s estate is a large one.

Rolf has never been married. He does not have any children. It would seem that the Plaintiff is Rolf’s “spouse”, being a person who is a party to a domestic partnership, that is to say, a de facto relationship that has been in existence for a continuous period of two years: s 104 of the Act.

Rolf’s mother, Herma Balinski, was born in Kiel in northern Germany. She never married. She had another son, Uwe, with whom Rolf had neither a relationship, nor any contact, throughout their lives. Herma died in about 2000.

Rolf maintained contact with his mother, and her sister, Christa. Christa died some years ago, after Herma, leaving no children.

The Plaintiff recalls only one occasion on which Rolf mentioned Uwe’s name, being at the time of drafting his only Will in 1967 (to which I shall refer). The Plaintiff asserts that Rolf said to him that Uwe was “part of the mixed up Balinski family”. The Plaintiff gave evidence that Rolf had no contact with Uwe, or with any of Uwe’s children. He stated that the only time Rolf may have spoken to them was in 2000 “when a phone call was initially received from Germany at about the time of the death of Rolf’s mother. However, it was a brief call …”. He said he could not identify, with certainty, the person, or persons, in Germany, with whom Rolf spoke.

Rolf’s father, Alfred Huenerjaeger (known as Alfred Hunter) was born in Ashersleben, in East Germany. He married Henny Mummenbrauer, at the age of 24, to whom he remained married until his death.

During the Second World War, Alfred may have been posted to Kiel, where he met Herma, Rolf’s mother. I note, albeit without drawing any inference, that Rolf is not listed as a child on Alfred’s Death Certificate: Affidavit of the Plaintiff, 11 June 2020, annexure “C”.

Sometime thereafter, Alfred and Henny emigrated from Germany to Australia. There were no children of their marriage.

In about 1958, Rolf, at the age of 15, migrated to Australia, and was adopted by Alfred and Henny. Subsequently, they had a falling out, and the Plaintiff states that Alfred and Henny wished to have the adoption order discharged, although Rolf refused. Thereafter, the Plaintiff says that Rolf maintained no ongoing relationship with either of them.

Alfred died, aged 80 years, in January 1990, in Ballarat, New South Wales. There is no evidence that establishes whether Henny is currently alive or dead.

The affidavit of the Plaintiff’s cousin, John Leslie Bryant, affirmed on 23 July 2020, who, for some period after 1997, lived in the unit in Waverton, and who asserted that he maintained a “close relationship” with both Rolf and the Plaintiff, stated at par 7:

Rolf had few friends at the time he met the Plaintiff. The Plaintiff’s friends then became his friends.

From 1997, following his relocation from Cowra to Sydney, the Plaintiff’s cousin, John, moved into the home unit in Waverton. He socialised, and shared meals, with the Plaintiff and Rolf, becoming “close friends, as well as … relatives”. The circumstances in which John came to move into the Waverton home unit are not disclosed in the evidence.

Upon John marrying Maggie, in 1999, they settled in the Waverton unit. Their two children, Anastascia (presently, 16 years of age) and Jonathan (presently, 11 years old) “look upon Rolf as family”.

John says that he regards the Plaintiff and Rolf as part of his family and gives some evidence of the closeness of their relationship. At par 6 of his affidavit, affirmed on 23 July 2020, John deposed that he and his wife provide any items that either the Plaintiff, or Rolf, need, and if the Plaintiff were to be unable to care for Rolf, that “[he] would want and feel it was [his] responsibility to help look after Rolf”.

There is no evidence given by John’s wife.

The Plaintiff asserts that “if [he were to] die before Rolf, ‘the family’ would look after him”. Rolf is said to have “treated John and Maggie and their children as his family”. The basis for this assertion is not made clear by the evidence.

The Plaintiff states that he “rarely discussed making Wills” with Rolf, save for him mentioning to Rolf, on occasion, that “his estate could be a problem if I died first … the Probate people would be searching back in Germany, looking for relatives in the prescribed order”. The Plaintiff says, however, that Rolf “managed to avoid the subject”.

(Whilst it is not entirely clear from the Plaintiff’s evidence, I infer that any such conversations occurred before Rolf lost capacity.)

There is evidence of a Will made by Rolf on 15 November 1967 (“the 1967 Will”). The Plaintiff describes it as “a copy” of the Will made by Rolf on that date, and adds that Rolf “never got around to revising the Will following his mother’s death, nor did he cover the eventuality of me also predeceasing him”. The location of the original Will was not disclosed in the evidence.

In the copy of the 1967 Will, Rolf, after revoking all prior wills and testamentary depositions, appointed the Public Trustee (now the NSW Trustee and Guardian) to be the executor and trustee of the Will; gave the whole of his estate on trust to pay any debts, funeral and testamentary expenses; devised a unit in Waverton to the Plaintiff; and then gave the residue of his estate, to his mother and to the Plaintiff, in equal shares.

If the original, or a copy, of the 1967 Will were admitted to Probate, one would think that there could be no dispute about whether the whole of Rolf’s estate passes to the Plaintiff, if he survives Rolf by 30 days. But, if the original of the 1967 Will were not located, having been traced into Rolf’s possession, the presumption of destruction of the 1967 Will, animo revocandi, may apply: McCauley v McCauley (1910) CLR 434 at 438 (Griffith CJ) citing Welch v Phillips (1836) 1 Moo PCC 299 at 302 (Lord Wensleydale).

Naturally, that presumption can be displaced. However, the strength of the presumption hinges on the character of the testator’s custody over the Will, as well as the surrounding facts and circumstances relevant to the likelihood of Rolf having, in fact, destroyed the 1967 Will with the intention of revoking it: Cahill v Rhodes [2002] NSWSC 561 at [58]–[59], [68] (Campbell J).

Of particular importance, in considering whether the presumption is displaced are the contents of the relevant Will. To the extent that the Will carefully, and completely, devolves Rolf’s property, and no other circumstances point to the probability of its destruction, by Rolf, then it may be said that “the presumption is so slight that it may be said not to exist”: Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of NSW, Powell J, 13 May 1993) at 26–27.

Even if the copy of the 1967 Will were not admitted to Probate, and the Plaintiff were to survive Rolf, and could establish that he were Rolf’s “spouse”, that is, “a party to a domestic partnership with the intestate immediately before the intestate’s death” (s 104 of the Succession Act), he would be entitled to the whole of Rolf’s estate on intestacy.

However, in his written submissions, Mr Ellison SC submitted:

I accept that if the Plaintiff did not survive Rolf by 30 days, Rolf would die intestate and the whole of his estate would pass under the operation of the rules of intestacy. The current state of the evidence does not enable the Court to determine to whom Rolf’s estate would pass in that event.

It seems to me that the possibility of the Plaintiff predeceasing Rolf is the real basis of the Plaintiff’s application. He states, at par 24 of his affidavit, affirmed on 11 June 2020:

This evidence, no doubt, prompted Mr Ellison SC to submit:

Yet, what was written in Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; [1984] FCA 167 at 88 (Bowen CJ, Lockhart and Fitzgerald JJ) should be remembered:

In Ireland v WG Riverview Pty Ltd [2019] NSWCA 307, Bell ACJ wrote, at [29]:

I accept that under s 21(b) of the Act, the Court may inform itself of any matter in any manner it sees fit and, under s 21(c), and is not bound by the rules of evidence. However, in my view, the evidence of the Plaintiff’s belief is of limited weight, as it does not constitute a representation of fact. Upon proper analysis, what has been written by the Plaintiff are, in fact, statements of nothing more than his belief.

In any event, the Court is bound to form an independent view of the evidence, overall, not simply rely on views expressed by the Plaintiff. As will be read, whilst the expression of the Plaintiff’s belief, may be honestly held, it is inconsistent with other evidence which refers to Rolf not taking up the Plaintiff’s entreaties that Rolf should make a new Will, a matter which was acknowledged, in the following terms, in the written submissions:

The submissions continued:

As will also be read, I am satisfied only that part of this submission should be accepted. In this regard, I accept that the Plaintiff is “realistically and reasonably the only natural object of the bounty of [Rolf]”. Yet, I am not satisfied that the Plaintiff has a reasonable basis for the belief expressed as to John. In a case such as this, the Plaintiff undertakes the onus of proving the requisite testamentary intention.

The Plaintiff annexed a draft of the proposed statutory Will to his Summons. In that draft, Rolf would revoke all prior testamentary instruments (Clause 1); would appoint the Plaintiff to be his executor, or in the alternative, appoint John, should the Plaintiff be unwilling, or unable, to act (Clause 2); would direct that after the payment of all funeral and testamentary expenses and debts, that whole of his estate be given to the Plaintiff (Clause 3); and in the event that the Plaintiff does not survive him by 30 days, the whole estate would be given to John (Clause 4).

There is no evidence which would enable the Court to determine precisely when Rolf lost capacity.

In his affidavit, affirmed on 16 June 2020, the Plaintiff states at par 5:

In a further affidavit, affirmed on 28 July 2020, the Plaintiff deposes, also at par 5 that:

To that end, Rolf was referred to Dr Liu who has reviewed by him twice, once on 4 May 2020 and then on 21 July 2020. Handwritten reports were sent by Dr Liu, after each consultation, to Rolf’s treating physician, Dr Breslin.

For the most part, in both reports, Dr Liu forms the same opinion and for that reason, it is only necessary to refer to the latter report, dated 21 July 2020, marked annexure “C” to the Plaintiff’s affidavit, affirmed on 28 July 2020. Dr Liu makes the following assessment of Rolf’s capacity:

Dr Breslin is of the opinion, that Rolf “has no capacity to manage his financial affairs due to memory loss; and difficulty with organising thoughts, planning and concentrating.”

In an email from the Plaintiff’s solicitors, sent to my Chambers on 30 July 2020, I was informed that an attempt was being made to obtain a “more specific report from Dr Liu”.

In a letter dated 28 July 2020, Dr Liu repeats most of what has been referred to above, concluding:

Of course, the Court is aware that dementia is a neurodegenerative disorder for which there is currently no cure and that, otherwise, Rolf is unlikely to regain capacity.

I recently dealt with the statutory scheme for the making of a statutory will in Re The Will of Alexa [2020] NSWSC 560. Because of the importance of the matter to the Plaintiff, I shall repeat some of the relevant matters written in that case.

As stated above, 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 can be no dispute that the Act may be relied upon in respect of Rolf.

A statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity: s 26 of the Act.

It is undoubted that the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court: Small v Phillips (No 2) [2019] NSWCA 268 at [149] (Brereton and McCallum JJA; Emmett AJA). Whilst the Act contemplates that there be a moving party, who the Court must conclude is an appropriate person, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will.

(I should mention that an application for special leave to appeal the decision of the Court of Appeal was dismissed by the High Court (Bell and Gageler JJ) in Phillips v Small & Ors [2020] HCATrans 96 at p 14(546) – p 15(550), the conclusion being that:

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

The Court is satisfied that, in the circumstances of this case, the Plaintiff is an appropriate person to make the application for an order under s 18 of the Act.

Rolf is not named as a party/Defendant in the Summons and an order was not sought that he 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.

Thus, it is first necessary to consider whether Rolf, being the person who is said to lack testamentary capacity, should be separately represented in the proceedings under the Act. 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.

In this case, I am satisfied that there are no members of Rolf’s family with a legitimate interest in the Plaintiff’s application. Indeed, in my view, there is no person, other than the Plaintiff, who has reason to expect a gift, or benefit, from the estate of Rolf. None of Rolf’s family are persons who could be regarded as a natural object of testamentary recognition by Rolf.

In view of the conclusion to which I have come, I am satisfied that it is not necessary to join Rolf as a separate party to the proceedings, even though there is no named contradictor.

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

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

Section 18(1) of the Act, 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.

It is to be observed that s 18(1) of the Act 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 of the Act, to which reference will be made later in these reasons.

However, the Court is not to make an order under s 18 of the Act 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.

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. That information includes:

There is a distinction drawn between the granting of leave under s 19 of the Act to make an application and the decision whether an applicant is an appropriate person to make the application for the purposes of s 22(d), on the one hand, and the making of an order under s 18, authorising the making of a statutory will, on the other. In relation to the two-stage procedure, it should be observed, as the Court of Appeal (Brereton and McCallum JJA, Emmett AJA), recently, wrote in Small v Phillips (No 2) at [151]:

The checklist provided by s 19 of the Act 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.

Because the Plaintiff, has instructed experienced legal practitioners, and was given the opportunity to provide additional evidence, I infer that all of the evidence that the Plaintiff could advance in relation to s 19 of the Act has been advanced.

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.

The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) of the Act if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of ss 19(2) and 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.

Without limiting the course 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.

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 of the Act that limits the role of the leave application to simply screening out baseless or unmeritorious claims.

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.

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:

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

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.

The Court must be satisfied of each of the matters in s 22 of the Act 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.

By their ordinary meaning, the words, “to be satisfied” mean 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.

As stated, there is, first, the requirement in s 22(b) of the Act that the Court be satisfied that the proposed statutory will is one that would have been made by the incapable person if he, or she, had testamentary capacity. Alternatively, there is the requirement in s 22(b) that the Court be satisfied that the proposed statutory will is reasonably likely to be, one that would have been made by the incapable person if she, or he, had testamentary capacity. Two concepts are included in this part of the sub-section. The first is that the terms of the proposed Will are those that are reasonably likely to have been included in a will if the person had made one. The second is that it is reasonably likely that a will, in those terms, would have been made by the person absent the loss of testamentary capacity. Thus, a distinction is drawn between a will that would have been made by an incapable person, on the one hand, and a will that is reasonably likely to be a will that would have been made by the incapable person, on the other.

As was written in Small v Phillips (No 2) at [158]:

The Court’s concern under s 22(b) of the Act 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.

The requirement in s 22(b) of the Act, in my view, similarly suggests a vigilant and anxious examination of the evidence as to the incapable person’s actual, or reasonably likely, intentions.

Section 22(c) of the Act 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.

There is nothing in s 22(c) of the Act 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.

In relation to s 22(d) of the Act, 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.

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:

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

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; [1918] HCA 73 (Isaacs J).

On the question of representation under s 22(e) of the Act, 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 sub-section (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.

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.

In Re Will of Jane [2011] NSWSC 624, I wrote the following concerning the effect of s 20(2) of the Act at [63] and [68]:

This is a case that would, in the words of Palmer J in Re Fenwick, be characterised as a “lost capacity” case. That is, a case “where the person is an adult, has formed family and other personal, relationships, has made a valid Will, and has expressed some testamentary intention before losing capacity”: Re The Will of Bridget [2018] NSWSC 1509 at [58].

Palmer J wrote in Re Fenwick of the Court’s inquiry as to intention in such a case at [155]–[159]:

In In the Matter of K, JL [2016] SASC 53, Doyle J wrote at [51]:

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.

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

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

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 wrote of the phrase “reasonably likely” in the Freedom of Information Act 1982 (Vic), at 842:

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

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

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. 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.

Given the consequences of the Court making a Will for a person who is, or is reasonably likely to be, incapable of making a will, clear and cogent evidence is required before a finding of “reasonable likelihood”. Therefore, although the standard of proof is on the balance of probabilities, the Court must, nevertheless, feel an actual persuasion of the existence of reasonable likelihood when determining whether it has been made out. The Court’s satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–362; [1938] HCA 34 (Dixon J).

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.

(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].)

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

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

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.

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

Whilst his Honour’s decision was the subject of a successful appeal in 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]:

As stated, if 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 an order under s 18 wholly revoking that Will.

I dealt with the principles relating to the costs of an unsuccessful application for a statutory Will in Re Will of Jane [No 2] [2011] NSWSC 883. I shall not repeat what I wrote in that case, which, in some respects, may be distinguished since, strictly speaking, the Plaintiff is not seeking an order in his own interest. However, this is not a case where Rolf has caused the litigation. His misfortune is that he is incapable of making a will. But, as stated, I am not satisfied that the statutory will in its entirety, as proposed by the Plaintiff, is, or is reasonably likely to be, one that would have been made by Rolf if he had testamentary capacity.

Although 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, in A Ltd v J (No 2) [2017] NSWSC 896 at [84]–[85], Ward CJ in Eq, wrote:

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

The Court must first determine whether the leave of the Court to make an application for an order under s 18 of the Act should be granted to the Plaintiff. In this regard, I am satisfied that the Plaintiff has given the Court the available information referred to in s 19 of the Act.

The Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied of the matters in s 22. I am satisfied that there is reason to believe that Rolf is, or is reasonably likely to be, incapable of making a will; that, in the absence of any other obvious applicant, the Plaintiff is an appropriate person to make the application; and, in the circumstances of this case, that adequate steps have been taken to allow representation of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought. (It is difficult, on the evidence, to nominate any such persons.)

However, I am not satisfied that the Will proposed by the Plaintiff is one, or is reasonably likely to be one, that would have been made by Rolf. The 1967 Will is the only yardstick by which Rolf’s testamentary intentions when he had capacity. Indeed, it provides the only evidence of Rolf’s testamentary intentions prior to him losing testamentary capacity may be considered. That does not mean that Rolf’s testamentary intentions may not have changed since then, in light of other developments. However, there is simply insufficient evidence of any expression, by Rolf, of any intention to confer testamentary benefits on any identified individuals, other than those persons named in his 1967 Will.

There is not even the suggestion that Rolf has considered whom he should name, as a substitute beneficiary or as beneficiaries, in the event that the Plaintiff did not survive him. It is unclear whether he has settled on what he wanted in relation to a new Will.

Indeed, Rolf, steadfastly, seems to have chosen not to make another Will. It appears, from the evidence, overall, that he has deliberately refrained from making any new Will, even when prompted by the Plaintiff to do so. I am unable to conclude that Rolf was disenchanted with the Will that he had previously made.

Bearing in mind the age difference between Rolf and the Plaintiff, it could not have escaped his attention that the Plaintiff might not survive him, or if he did, might die within 30 days of his own death. Yet, he did not even discuss, and, apparently, was not prepared to discuss, with the Plaintiff, what should occur in those circumstances. The evidence also does not reveal to any attempt, by Rolf, to document his intentions of what should occur after his death.

I am also not satisfied, upon inquiry into the objective circumstances pertaining to Rolf and his estate, together with those who might have a reasonable expectation in relation to his bounty, that it is appropriate for the order to be made, so far as it relates to nominating John, the Plaintiff’s cousin, as the substitute executor or beneficiary, if the Plaintiff does not survive Rolf, or does not survive him by 30 days. There is a paucity of evidence of any expression of an intention to confer any testamentary benefit on John or otherwise wish him to administer the estate.

Nor is there any evidence that Rolf, when he had capacity, made any gifts to the Plaintiff’s cousin, or that he had considered him, otherwise, to be an object of testamentary bounty. In this regard, it is necessary to note that John is not related, by blood, to Rolf.

The Plaintiff’s belief on this topic, when taken with the other evidence, does not satisfy me otherwise. In this regard, the Court’s jurisdiction does not authorise a statutory will to be made for Rolf merely because to do so would avoid difficulty in ascertaining the persons entitled to his estate on intestacy, or to allay the concern that the Plaintiff specifically has in that regard, as noted above.

Yet, in the circumstances of this case, I am satisfied that Rolf would have an intention to make a Will to benefit the Plaintiff, since there is no explicit evidence that he has revoked the 1967 Will. I am satisfied that he would make, or be reasonably likely to make, such a Will giving the whole of his estate to the Plaintiff, if he were aware that there might be a concern about the existence, or validity, of the original 1967 Will.

For the same reasons, I am satisfied that a proposed Will that leaves the entire estate to the Plaintiff is reasonably likely to be one that would have been made by Rolf if he had testamentary capacity, and if he were aware that there might be a concern about the existence, or validity, of the original 1967 Will.

In this regard I have considered all of the available evidence and the information, as has been made available, concerning Rolf’s actual intentions, attitudes and predispositions in the past, by reference to what is known of his relationships, history, personality and the size of the estate. Otherwise, Rolf seems to have implicitly rejected the Plaintiff’s entreaties to make a will, on each occasion, nominating a substitute beneficiary, when he had capacity.

Whilst it may not be necessary to make a Will providing for the whole of Rolf’s estate to pass to the Plaintiff, it is desirable to order such a Will to be made ex abundanti cautela (from an abundance of caution) to make clear what might be implicit and to avoid doubt as to the validity of Rolf’s 1967 Will and to make clear his intentions, even if the 1967 Will, or a copy of it, if admitted to Probate, would achieve the same result. Such an order should be made in the interests of the orderly and efficient administration of the estate. In this way, if the Plaintiff survives Rolf by 30 days the distribution of Rolf’s estate is made clear. Furthermore, there is no reason to think that to make such a Will would not be in Rolf’s best interests.

I am similarly satisfied that a Will in which the Plaintiff is appointed the executor and trustee is, or is reasonably likely to be, one that would have been made by Rolf if he had testamentary capacity, as the Plaintiff is the sole beneficiary if he survives Rolf. In the event that he is unwilling, or unable, to act, or if he predeceases Rolf, then the NSW Trustee and Guardian should be the substituted executor. In appointing the substitute executor and trustee, I have had regard to the fact that the Public Trustee was appointed the sole executor and trustee in the 1967 Will. In addition, the NSW Trustee and Guardian would be able to take the necessary steps to attempt to ascertain the identity of the persons entitled under the rules of intestacy.

In determining the burden of costs, I bear in mind that the jurisdiction relied upon by the Plaintiff involves a public benefit, and imposing a liability for costs in the event that the Court does not accede to an application should not discourage its invocation. In this case, whilst I am satisfied that to remove any doubt, for the good order, clarity and reasonable finality of the issue, an order should be made. In all the circumstances, I am just satisfied that the Plaintiff should receive his costs of the proceedings out of Rolf’s estate.

The Court: