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Fenwick, Re; Application of J.R. Fenwick & Re Charles  NSWSC 530 (12 June 2009) (Palmer J)
This case involved 2 speparate applications to the Supreme Court of NSW concerning Chapter 2, Pt 2.2, Div 2 of the Succession Act 2006(NSW). The provisions of this Division empower the Court to order the making, alteration or revocation of a will on behalf of an individual who lacks the capacity to make a will of their own. A will made by the Court in this way is known as a “Statutory Will”.
Re Fenwickconcerned an application made by John Fenwick seeking orders for the creation of a statutory will on behalf of his 60 year-old brother, Robert.InRe Charles the court considered the case of an 11 year-old child who had sustained severe, permanent brain damage as an infant. Charles had received a compensation pay-out for his injuries which was held on trust by the Public Trustee, and was himself in the care of the Minister for Community Services. The Crown sought a statutory will so that Charles’ estate would not pass to his parents upon intestacy, as the parents were suspected of having caused Charles’ brain damage.
It fell to his Honour to determine, in the circumstances of each case, whether or not the wills proposed by the respective applicants were, or were reasonably likely, wills that the relevant subjects would have made had they possessed the necessary capacity: Succession Act, s22(b).
His Honour identified several potential pitfalls inhering in s22(b), cautioning that the court must avoid:
According to Palmer J, the Statutory Will scheme highlights the tension between the idea of complete “testamentary freedom”, and the social need to ensure that all those who should be cared for by the deceased are in fact cared for in the event of that individual’s incapacitation or death. This is the premise of the Family Provision Act (NSW).
In these 2 applications Palmer J distinguished between 3 different forms of incapacitation. Firstly he considered where a person has made or was capable of making a will but has since lost this capacity [“lost capacity”]; secondly, where a person has never had the requisite testamentary capacity [“nil capacity”]; and thirdly borderline situations in which a person was a minor at the time of incapacitation, but was old enough at that time to “express reasonable wishes and form relevant relationships” [“pre-empted capacity”]. It is also possible, as in the case of Re Charles, that the subject’s estate will pass to “undesirable” family members or other parties under the rules of intestacy.
Palmer J stressed the “remedial and protective” nature of the Court’s jurisdiction under Pt2.2 Div 2. The best interests of the testator and those of persons properly entitled to claim against their estates, his Honour stated, are the foremost concerns of the Court in applications under the Act.
Succession Act, s22(b)
His Honour held that the phrase “reasonably likely” as it is used in s22(b) affords the Court some “…latitude, or margin of judgment…”, and is to be interpreted to mean that there is a “fairly good chance”, or that reasonable people could regard the result as likely.
Lost Capacity Cases
Where an incapacitated person’s current intentions are discoverable or known, the Court must first determine whether or not a proposed statutory will “expresses” this intention. The Court will then proceed to decide whether or not the person would actually have made a will reflecting this intention if they had the requisite capacity. Here, the Court will be guided by a variety of factors such as “…[the subject’s] relationships, history, personality and the size of the estate.” Such factors may combine to show that it is highly unlikely that the person would have intended that the failure of a residuary bequest or similar problem would lead to intestacy.
Where a person has lost capacity but has never made a will, the Court is required to ask itself whether or not, in all the circumstances, it is reasonably likely that the subject would have made a will at some point, but for their incapacitation. Where the Court is satisfied that the subject would have intended to, or would have died intestate, it ought not to make a will; likewise where there is no convincing evidence either way.
Nil Capacity Cases
In relation to such cases, Palmer J stated that “… the Court must start from the position that, if there are assets of any significance in the minor’s estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate.” In the case that the subject has assets of any significant worth, the Court may assume that it is reasonably likely that the subject would have decided to make a will, in line with the “common practice of most people”.
Pre-empted Capacity Cases
Such cases generally concerns persons who were incapacitated at an age where they were not legally able to make a will, but were old enough to form relationships and understand the concepts of will-making and intestacy. Again, the Court must decide upon all the facts and circumstances of the case. The Court must ask “…is there a fairly good chance that the proposed statutory will reflects the testamentary intention that this particular teenager, acting reasonably, would express if he or she were at least eighteen years of age?”
Where no intention is or has ever been expressed, one asks whether it is reasonably likely that an incapacitated person with any significant assets would have made a will at some point after gaining capacity rather than leaving their estate to the rules of intestacy.
Whether the statutory will is “appropriate”
Palmer J said: “[i]f the Court is satisfied that the proposed statutory will qualifies under s 22(b), the application for leave must then pass the test required by s 22(c).…that the Court can grant leave if it is satisfied that, …. a final order will be 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.”
In weighing the proposed will, the court must be satisfied that the wishes expressed by an incapacitated person are not irrational or the product of undue pressure. The court must also consider whether the proposed will “accommodates” an eligible potential claimant under relevant family provisions legislation, to avoid future litigation and controversy.
Re Fenwick:incapacitated Robert was 60 years of age, and cared for by his brother John. Robert’s estate was worth some $2m, and was mainly left to John by Robert’s existing 1987 will with gifts to 2 cousins. Both of these cousins, along with John, were, at the time of trial, suffering from life-threatening illnesses and were expected to pre-decease Robert. This would result in an intestacy, upon which the estate would pass to Robert’s only other living relative, an uncle who at the time of trial, was 84 years old and was also expected to pre-decease Robert. Thus, the Court was asked to approve a statutory codicil to the effect that, should the beneficiaries under Robert’s will pre-decease him, a trustee would be appointed to execute the will in favour of the cousins’ children.
Robert had no other relationships, familial or otherwise, that would have supported a family provision application, and he was not affiliated to any charity.
Based on the terms of the 1987 will, his Honour held that Robert had taken steps to avoid intestacy while still possessed of testamentary capacity. This suggested that he would, if he had retained capacity, have taken steps to prevent intestacy by appointing other beneficiaries, given that present circumstances suggested that his intended beneficiaries would pre-decease him. Given Robert’s relationship and frequent contact with his cousins, combined with a lack of other family members, his Honour held that it was reasonably likely that, if Robert had testamentary capacity, he would make a gift over to his cousins’ children, as proposed. A final order was entered in the applicant’s favour under s18 of the Act.
Re Charles: were Charles to die intestate, his estate stood to pass to his parents under the Probate and Administration Act 1898 (NSW). While not convicted of causing his injuries, the parents were suspected of having done so. The Minister believed that Charles’ estate should go to his older sister, with a gift over to 2 appropriate charities in the event that the sister pre-deceased Charles.
Charles’ parents were notified of the proposed application but declined to contest it.
In considering the proposed statutory will, his Honour posed the following question: “…is there a fairly good chance that a reasonable person, faced with Charles’ circumstances, would choose to die intestate, leaving his assets to Charles’ parents?” His Honour felt that it was reasonably likely in all the circumstances that Charles would not have chosen to die intestate. Palmer J held that “…not only is it reasonably likely but it is highly probable that a reasonable person faced with Charles’ circumstances would give the whole of the estate to Charles’ sister.” The “claims” of the charities as residuary beneficiaries were, his Honour held, strong enough to justify the gift-over. Final orders for the making of the proposed will were entered under s18.
Practice and Procedure
His Honour made the final direction that straightforward and unopposed cases such as those in question here did not require a hearing in open Court, such applications being most appropriately dealt with on the papers by a judge in chambers pursuant to Civil Procedure Act s71(d) or s71(f).