TASCAT, nil capacity & the statutory will

In Tasmania, a statutory will can be made by the Supreme Court of Tasmania or by the Tasmanian Civil and Administrative Tribunal, Guardianship stream (Tribunal ) where a person lacks capacity to make a valid will under division 3 Of part 3 of the Wills Act 2008

The person applying for a statutory will must satisfy the tribunal that:

  • (a) the proposed testator is incapable of making a will; and
  • (b) having made reasonable enquiries, that the proposed testator has not made a will or any purported will; and
  • (c) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a benefit from the estate of the proposed testator; and
  • (d) it is appropriate to make an order for the execution of a will for a proposed testator; and
  • (e) the proposed will is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity

The grounds for making statutory wills differ in each Australian jurisdiction; in Tasmania the tribunal must be satisfied that the proposed will is, or is reasonably likely to be, one that would have been made by the person if they had testamentary capacity.

Capacity

The common law test for testamentary capacity established in Banks v Goodfellow, was restated and endorsed in Timbury v Coffee, by Dixon J:

“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.”

Background

EI is a 25 year old man diagnosed with severe cerebral palsy from injuries sustained at birth; EI is globally disabled, non-verbal, and is fed by means of a PEG tube. A report prepared in 2008 predicted a 95% probability that EI will survive to between 26 and 34.1 years of age.

In July 2021 EI’s general practitioner provided an opinion that EI does not have the capacity to understand the extent of his personal estate, nor the ability to make decisions about the appropriate distribution of that estate under a will.

Following the settlement of a claim brought against the State of Queensland to compensate for his injuries EI was the recipient of a significant settlement and is a beneficiary of a court-appointed Trust (the Trust).

EI lives in Tasmania with his mother, BI (the Applicant) in a house (the Property) which was purchased by the Trust in March 2020.

EI’s parents separated in 1998. His father OI moved to another state in 2003 while EI and his mother BI remained in Queensland. After OI’s departure, BI became the primary carer for EI, with OI providing care on an intermittent basis.

EI relies entirely on others for his daily needs and ongoing care. The majority of EI’s care needs are attended to by BI together with support providers funded by the National Disability Insurance Scheme (NDIS). OI also provides an estimated 60 days of care to EI annually to provide respite to BI.

The application

The applicant sought an order from the Tasmanian Civil and Administrative Tribunal,  under  s 32 of the Wills Act 2008  to authorise the making of a statutory will for EI. The following draft will before the tribunal proposed:

  • (i) BI and OI be appointed the joint Executors and Trustees;
  • (ii) in the event that BI survives EI, the Property (or any substitute property) is gifted to BI;
  • (iii) charitable gifts, each in the form of $10,000, are to be given to the Epilepsy Foundation, the Cerebral Palsy League and Variety Australia Ltd; and
  • (iv) the residual estate to be divided between BI and OI, with BI to receive a 2/3 share and OI to receive a 1/3 share

The Tribunal was satisfied the Applicant has standing to make the application under s 33(a)

EI never had testamentary capacity, and due to the nature of his disability, there is no prospect of him acquiring such capacity; ss 33(b) and s 33(c)

EI’s estate is valued approximately $6.7 million. The presumption favours the making of a statutory will unless the distribution of the estate upon intestacy would provide adequately for all claims upon the estate.

BI has been the primary carer of EI from 2003; has made contributions toward, (and intends to make further contributions) to the maintenance and upgrading of the Property.

The decision

The tribunal believed it was reasonably likely that a testator in EI’s position would have included provisions in their will to provide security of accommodation for their primary carer, provide a benefit to their father who continues to be in a close and continuing relationship with them, and provide gifts to charitable organisations that have historically provided assistance.

However, EI’s estate under intestacy would not reflect the contributions BI has made towards EI or sufficiently provide for her. Additionally the tribunal held that a person in EI’s position would provide for OI in his will. The Tribunal was satisfied that if EI died intestate his estate would not provide adequately for all reasonable claims.

Importantly the tribunal placed significant weight that OI supported BI’s application and consented to the proposed terms of the will.

The Tribunal must objectively assess whether there is a fairly good chance that a reasonable person in the circumstances of EI would have made a similar will.

the estate…being so large that his mother can comfortably be provided for, that a person of testamentary capacity…would likely have made some provision for his father, bearing in mind his father’s disabilities and his situation in life.

Elayoubi, application of Wosif [2010] NSWSC 1004 at [8]

Finding no dispute that BI’s contribution to EI’s care is significantly larger than OI the tribunal believed it was appropriate to make an order for the execution of a will for a proposed testator; and the proposed will, is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity; ss 33(e) and s 33(f) of the Wills Act .

In authorising a will for EI in the terms outlined above the Tribunal was satisfied that

  1. the application met the requirements of s 32 of the Wills Act;
  2. all of the mandatory threshold tests provided in s 33 of the Wills Act were met;
  3. following enquiry, EI has not made a will or any purported will s 30(4);and
  4. EI is alive as at the time the order is to be made s 30(6).

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