Lord Templeman and the Golden Rule

Sydney William Templeman was a British judge. Born in March 1920, the son of a coal merchant, in 1970 Lord Templeman became Attorney General of the Duchy of Lancaster before being appointed a High Court judge, Chancery Division in 1972 followed by promotion to the Court of Appeal in 1978, becoming a Law Lord in 1982.

Lord Templeman had two sons, Peter and Michael, with his first wife, Margaret. Following Margaret’s death Lord Templeman married Sheila Edworthy in 1996.

Sheila had one son, Bruce, from her first marriage and two daughters with her second husband, John: Jane and Sarah. Sheila and John built a house known as Mellowstone, in Exeter; John died in 1995. When Lord Templeman married Sheila he moved to Exeter to live in Mellowstone and lived there until he died in 2014.\

Under the 2001 Will and 2004 codicil, if Sheila predeceased him and left Mellowstone to him under her will, Lord Templeman left £20,000 free of tax to each of his six grandchildren and £120,000 free of tax to Sheila’s residuary beneficiaries. Any greater value of Mellowstone would fall into his residuary estate, which was to be shared by his two sons, Peter and Michael.

Sheila died in June 2008, two months before the 2008 will was made, and Mellowstone was left to Lord Templeman by her last will. In the 2008 will, Lord Templeman left Mellowstone to Jane and Sarah. He left no legacies to his grandchildren or Sheila’s residuary beneficiaries and, after some modest gifts, the entire residue of his estate was left to Peter and Michael in equal shares.

Lord Templeman expressed the ‘Golden Rule’ concerning mental capacity in the case of Kenward v Adams [1975] CLY 359:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however, straightforward matters may appear, and however difficult or tactless it may be to suggest the precautions be taken; the making of a will by such a testator ought to be witnessed or approved by a medical ….practitioner who satisfies himself of the capacity and understanding of the testator, and…records and preserves his examination and finding”.

It has been held that the golden rule is a rule of solicitors’ good practice, having the potential to reduce the risk of a claim of lack of testamentary capacity and should, therefore, be offered to testators as an additional precaution even if not observed.

At the time of making his own will in 2008, Lord Templeman was 88 years old and suffering from mild dementia and short-term memory loss. Despite this, no medical practitioner assessed Lord Templeman’s capacity. Lord Templeman’s son and daughter-in-law sought to challenge the validity of the will for lack of testamentary capacity.

The Claimants contended that there was no rational explanation for the change that Lord Templeman made in his 2008 will. The issue to be decided was whether Lord Templeman had testamentary capacity when he executed the will before a solicitor and another witness in August 2008. The effect of invalidity of the 2008 will would be that Lord Templeman’s final will was one that he made in 2001, subject to a codicil of 2004.

The defendants contend that there was, is and can be no rational explanation for the change that Lord Templeman made in his 2008 will as regards Mellowstone. The explanation that he was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone from Sheila. That illusory belief provided a false premise for the 2008 will and therefore he lacked testamentary capacity.

The law relating to testamentary capacity is as set out in Banks v Goodfellow (1869) LR 5 QB 549, paraphrased in more modern language in Burns v Burns [2016] EWCA Civ 37, as follows:

“[33] … the testator must:
(a) Understand that he is giving his property to one or more objects of his regard;
(b) Understand and recollect the extent of his property;
(c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;
(d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made.”

The Court believed that the basis of a challenge to the validity of the 2008 Will was narrow; as the Will was rational on its face and duly executed; Lord Templeman sufficiently understood the act of making a will and its effect, and sufficiently understood the extent of the property of which he was disposing. It is not in dispute that he knew and approved of the contents of the will.

Although Lord Templeman was never diagnosed with or treated for this disease during his lifetime he started to experience early symptoms of dementia attributable to incipient Alzheimer’s disease in 2006. Apart from a short stay in hospital in early 2014, he continued to live in Mellowstone for the rest of his life, supported to an increasing extent by Jane and her husband, John, by Sarah and her partner Mike, and by professional nursing support only in 2014.


Lord Templeman’s working memory gave him no difficulty. He was able to capture and use information, converse and be witty and observant, however, he would commonly forget what had been said earlier in a conversation or repeat himself.

The Court found “no cogent evidence to suggest that Lord Templeman’s mental functioning was impaired in 2008 to any significant degree”. he was aware of his 2001 will and 2004 codicil as they were made before the onset of any impairment so he would likely have remembered them, and the documents were easily found in his study and therefore would have considered them before seeing his solicitor to discuss and execute the 2008 will.

Lord Templeman had become very attached to Shelia, Jane and Sarah in the years preceding his death. Moreover, all the evidence suggested that Lord Templeman was at all times a strong and decisive person and when he made his new Will, he was not unduly hampered by his difficulty with short-term memory loss.
It was argued that if Lord Templeman had a functioning memory then he would have heeded his own golden rule. The Court held that while observing that medical assessment should have occurred to avoid such dispute, his lordship’s failure to do so was instead evidence

“of the commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves”

Given Lord Templeman’s reputation, and even at his age his evident intellectual resources and the perfectly rational terms of the new will on the face of it, the Court was not surprised(the Golden Rule notwithstanding) that his solicitor decided not to enquire further or suggest that he be medically assessed.

The Court dismissed that Lord Templeman was subject to a delusion, or illusory belief, which undermined his ability justly to decide., holding that even a simple mistake, which was attributable to his poor memory fell

“far short of the kind of “delusion” needed to negative testamentary capacity”.

Lord Templeman was held to have had testamentary capacity as he was able to comprehend and appreciate the claims to which he ought to give effect, was not suffering from a delusion that poisoned his mind. Accordingly, the 2008 will was admitted to probate.

Celeste Barber and the Charitable Trust

Over the spring and summer of 2019 – 2020, Australia suffered a series of catastrophic bushfires. Millions of hectares of bushland and agricultural land were burned out. Thousands of homes and properties were destroyed. Countless animals were killed or injured.

Thirty-three people throughout Australia were killed including fourteen firefighters; twenty-five people were killed in New South Wales including six members of the NSW Rural Fire Service. Many others sustained physical and psychological injuries.

In New South Wales firefighting was organised under the command of the NSW Rural Fire Service, a body constituted under the Rural Fires Act 1997.

Fundraising

Celeste Barber responded to this unfolding crisis by launching a charitable crowdfunding appeal (“the appeal”) in early January 2020 entitled:

“Please help any way you can. This is terrifying.”

Celeste nominated, and PayPal published, the NSW Rural Fire Service & Brigades Donations Fund (“the RFS Fund”), as the proposed recipient of the appeal donations. The RFS Fund is an express charitable trust and a charity within the meaning of s5 of the Charities Act. It is a registered charitable trust with the Australian Charities and Not-for-profits Commission. The appeal raised $51 million. PayPal remitted this money to the RFS Fund.

Charitable Trust

A charitable trust is created when an initial sum of money is transferred to a trustee, who manages it and the income from this investment is then distributed to charitable organisations for the advancement of the “charitable purposes” specified in the trust instrument.

Courts now generally accept that charitable trusts fall into one of the following, for the:

• relief of poverty;

• advancement of religion

• advancement of education

• or other purposes beneficial to the community

A charitable trust is administered by the trustees, whose powers are conferred by the trust instrument, legislation and the Court. In NSW, the relevant legislation is the Trustee Act 1925 (”the Act”) and the Charitable Trusts Act 1993.

The RFS Fund

The trustees of the RFS Fund, (“the trustees”) constituted by a trust deed of 10 April 2012 (“the Deed”) sought the Court’s advice or direction under s 63 of the Act as to the proper interpretation of the RFS Trust Deed.

The Deed established the RFS Fund. Recital B of the Deed records that the RFS Fund

“will be established and operated solely for the purpose of supporting the volunteer-based fire and emergency services activities of the Brigades”.

Clause 1.1 defines “Brigades” as

“all brigades establish from time to time under the Rural Fires Act 1997 (NSW) as amended.”

Clauses 2.1 and 2.2, of the Deed, establish and name the RFS Trust. Clause 2.3 sets out the purposes of the RFS Fund. This clause is the central provision to be construed by the Court.

The Court proceedings

Section 63 of the Act empowers the Court to advise trustees

“on any question respecting the management or administration of the trust property or respecting the interpretation of the trust instrument”.

The trustees wish to honour the intentions and beliefs of Celeste and the donors who responded to the appeal concerning what should be done with the donated money. But they wish to do so consistently with the Deed and following applicable law.

If a trustee acts on the Court’s “opinion, advice or direction’ under s 63 of the Act the trustee is

“deemed to have discharged the trustee’s duty as trustee in the subject matter of the application”.

Therefore, provided a trustee’s application is not misleading and the trustee acts following the Court’s advice, the trustee is protected from a complaint.

The advice the Court gives is private advice to the trustee. But unless there is a special reason for confidentiality, in the proper administration of justice, the advice is given in open court. In proceedings under s63 of the Act, a trustee asks the Court questions, which the Court then answers.

The trustees raise four questions with the Court about the interpretation of the RFS Trust Deed. whether, they are justified, in the proper performance of their powers and duties as the trustees, in applying the monies in the RFS Fund to any of the following four possible objects:

1. paying money to other charities or rural fire services, whether in New South Wales or other Australian states or territories, to assist in providing relief to persons and animals affected by bushfires;

2. setting up or contributing to a fund to support rural firefighters injured while firefighting, or the families of rural firefighters killed while firefighting;

3. providing:

a) physical health training and resources,

b) mental health training and resources, or

c) trauma counselling services,

d) to volunteer firefighters (as defined in Rural Fires Act, s 8), who require them in connection with performing the functions of the New South Wales Rural Fire Service, as defined by Rural Fires Act, s 9; or

4. setting up or contributing to a fund to meet the costs for volunteer rural firefighters, as defined in Rural Fires Act, s 8, to attend and complete courses that improve skills related to the volunteer-based fire and emergency services activities of the brigades, established under the Rural Fires Act.

The Crown, as parens patriae, must protect all property committed to charitable purposes. The Attorney General of New South Wales joined as a defendant in these proceedings on behalf of the Crown, fulfilling its usual role to represent the object of a charity.

The Court after taking account of the facts presented including greater detail about the appeal and the structure of the crowdfunding payment mechanism used; followed by the terms of the RFS Trust Deed and the legislative context relevant to the Court’s consideration of the terms of the RFS Trust Deed. The Court advises trustees of the RFS Fund that they:

1. Cannot use the donated money to give to other charities, or to donate interstate, or to help people or animals affected by bushfires.

2. Can set up or contribute to a fund to support rural firefighters injured while firefighting or the families of rural firefighters killed while firefighting.

3. Can make payments from the RFS Fund to provide volunteer firefighters with a fund from which physical and mental health training can be provided, together with trauma counselling services.

4. Can set up or contribute to a fund to meet the costs for volunteer rural firefighters to attend and complete courses that improve their skills related to the volunteer-based fire and emergency services activities of the brigades.

Despite the trustees’ wish to honour those donors’ intentions, hopes or both that the money they donated would be used for purposes beyond those which the Court has advised, the Court has applied the principles provided by the Act that ensure a degree of certainty in the application of trusts including charitable trusts.

Family Provision claim by a close friend of an Intestate

Horst Marszalek died intestate in February 2018 aged 79 years. Horst had never married and had no children. His parents were dead and his closest surviving relatives were his brother, Reiner, who died in August 2018, and his nieces Ingeborg and Petra.

Horst’s intestate estate would be distributed, 25% each to Ingeborg and Petra, and 50% to the estate of Reiner. However, at the time of his death, Horst was living with, his close friend for over 30 years George Rakovich who sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act).

As Horst died intestate George is not entitled to receive any share of his estate.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Proper provision means not only provision from the estate that alleviates poverty, but also takes into account the vicissitudes of life.

George worked full time and provided Horst with $100 per week for shared living expenses; performed odd jobs and shared some of the cooking and assisted Horst with some other jobs around the house. At specific moments of personal crisis in each other’s lives, George and Horst provided support to one another.

George had never been married, although he was in a long time de facto relationship with Carole Millar which ended in about 1993. There were two children of this relationship: a son Ben, who was born in November 1987, and daughter Jamie, who was born in May 1986.

George lived with Horst from the beginning of 2012 until his death in February 2018. He continued to live in the property until November 2019. Although he did not pay any rent, or occupation fee, to the estate, he had maintained the home and carried out any maintenance and repairs that had been required. He also paid the water rates.

The Court agreed that George was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member within s 57(1)(e) of the Act.

Reiners widow Helga the sole beneficiary of Reiner’s estate died in August 2019, after the commencement Court proceedings. The beneficiaries of Helga’s estate were her two sons, Ralf and Frank.

Helga’s estate comprised, in part, the estate of Reiner, which includes a half share of Horst’s estate.

Helga and Reiner visited Horst in Australia in 1990, in 1993, and for the last time, in 1996 corresponding by telephone, and by letter, about once a month and on special occasions.

Frank Ralf Petra and Ingeborg never met Horst although they spoke on the telephone or kept in contact with him via their parents.

In applying s60(2) of the Act the Court was satisfied that George was a good friend of Horst, and displayed close, paternal feelings for and felt a deep sense of grief following Hort’s death. Whilst there was no intimate or sexual relationship between them they had known each other for many years and had shared a house since 2012.

At the time of the hearing, George was living with his daughter, her husband and their three children, and due to his poor health was not able to continue with his work as a Site Supervisor.

George’s financial circumstances are unlikely to improve at his age, with his medical condition; significantly, he had placed the cash sum of $165,000 into a bank account in his son Ben’s name. Ben without his father’s knowledge, or consent, had spent all of the money on drugs and gambling. Ben has promised to repay the amount taken, but the Court raised concerns whether that promise will be realised.

The Court found that George is an eligible person, that the claim for family proceedings was commenced within time, and that the provision made for him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, awarding him a lump sum equating to 45 per cent of the net estate that which will enable him to purchase accommodation in which to live, a modest amount for requirements of life.

55 per cent of the net value of the estate to be divided between the nephews and nieces of the deceased, with each receiving 13.75 per cent, providing each with a reasonable capital sum for their life’s requirements.

Statutory Will – Nil Capacity

The Supreme Court may act on behalf of a person who lacks testamentary capacity in a situation where if a Statutory Will is not made, their estate will pass according to the laws of intestacy, which might not be appropriate in that particular case. The Court needs to be satisfied that

‘the proposed will … is or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’.


The applicant for a Statutory Will must supply the Court with information about the lack of testamentary capacity of the person. Details of the person’s financial position; who would inherit the person’s estate if they died without a Will and provide a copy of the proposed Will and/or Codicil to the Court.


The Court also must be satisfied that the Applicant is an appropriate person to make the Application; and why the proposed Will and/or Codicil is a Will or Codicil that the person would make if they had capacity to do so.


“The making of a statutory will provides no guarantee that a family provision application will not be made after the death of the notional will-maker but, in practice, it may have a distinct tendency in that direction, especially if the “will” made is the subject of acquiescence on the part of the will-maker’s family and social circle”.

The Estate of the person for whom the application is being made will pay the costs of the application in most instances.

In November 1997, Charles, aged four months, was admitted to hospital with severe head injuries. He was in a critical condition and was placed on life support. The treating physicians were of the opinion that the injuries were deliberately inflicted and were consistent with “Shaken Baby Syndrome”.

The parents did not provide any explanation to the Police as to how Charles came to be injured. They have, however, consistently denied that they injured him. The parents have never been charged with causing Charles’ injuries. However, the surrounding circumstances raise suspicion against them. In 1998 the Children’s Court ordered that Charles be removed from the parents’ care, and parental care was allocated to the Minister for Community Services.

In November 2000, the Victim Compensation Tribunal awarded Charles compensation to be held on trust for him by the Public Trustee until he reaches the age of eighteen years. However, Charles’ life expectancy is diminished because of his immobility and the increasing risk of lower respiratory infections.

The medical evidence shows that Charles disabilities are permanent, and he will never have testamentary capacity. The Minister sought an order for a statutory will for Charles.

If Charles were to die intestate, then due to state law his estate would go to his parents in equal shares. The Minister believes that the parents should not benefit from Charles’ intestacy and that Charles’ whole estate should go to his sister, who is some two years older than Charles. If she predeceases Charles, the Minister proposed that the estate be divided equally between two charities which care for disabled children such as Charles, namely the Sydney Children’s Hospital Foundation and the Spastic Centre.

The Court held that this is a nil capacity case as Charles has never had, and never will have testamentary capacity. The parents had no objection to the proposed statutory will and did not wish to be represented during the proceedings.

The Court was satisfied that not only was 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, and if she predeceased him would choose to provide in his will for a gift to the Sydney Children’s Hospital Foundation and the Spastic Centre.

Statutory Will – Pre-empted capacity

A is fourteen years old and lacks testamentary capacity. He was born with a rare congenital brain malformation treatment for which is the insertion of a cerebral shunt to drain fluid from the brain. At around two years’ of age, there was a malfunction with the shunt which led to A suffering a severe brain injury.

As a result of a medical negligence claim A was awarded substantial compensation; the value of A’s trust fund was $3,711,912.54 in September 2019. The trust includes a residential property (“the Property”) valued at $526,000, which was purchased in early 2011 in A’s name with the approval of the trustee for the purpose of being modified to meet his special needs.

A’s father OR had been violent and abusive towards A’s mother (on one occasion in the front of A, causing him stress); had been found guilty of crimes and sentenced to imprisonment.

OR had moved into the property preventing it being used as a home for A, notwithstanding that it had been modified to accommodate A’s special needs. Consequently, A’s mother and her children were required to continue to live in inappropriate public housing, which often caused A distress.

A has two siblings, a nine-year-old and an 8-year-old brother. A’s mother died on 3 May 2019 as a consequence of metastatic oesophageal cancer. Consequently, OR is A’s only surviving parent.

On 26 July 2019, the Children’s Court of New South Wales made orders that all aspects of parental responsibility for A and his two siblings are allocated to the Minister for Communities and Justice until further order.

The Secretary of the Minister’s Department made an urgent application for a ‘statutory will’ for A due to the deterioration in his health proposing that A’s siblings be named as his sole beneficiaries, excluding OR who would inherit if A died intestate.

To make an order under s18 of the Succession Act the Court must be satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation, as the Court considers appropriate, 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.

The Secretary relied upon an affidavit made by A’s mother in December 2018, in Family Court proceedings in support of an application for a parenting order designed to ensure that, after her impending death, the three children were cared for by someone other than OR.

In an affidavit A’s mother deposed that she had always been the carer for A and the other two children, that OR never supported A, and had indicated to her that if she could no longer care for A, OR would place A in respite care.

Due to its urgent nature OR was not notified of the application and was not served; as a consequence, he was not given ‘an opportunity to appear’

If the Court had refused to deal with the application and AR had died before OR could be found and given proper notice of the application, the opportunity for the Court to apply this beneficial legislation would have been lost.

The Court was satisfied that (had he been capable of considering the matter) A would have wanted to bestow a substantial testamentary benefit on his siblings, even though it is less clear that he would have excluded his father completely.

Despite these misgivings, the Court made the orders sought; observing that due to the urgency OR was absent from the hearing, and may have a right to apply for an order setting aside or varying the orders that have been made.

Statutory Wills – on the grounds of lost capacity

Millie Phillips (Millie) is a 90-year-old woman who had three children by her former husband; two daughters Sharonne and Lynette (who died in tragic circumstances some time ago) and a son Robert. Sharonne has one child Anthony, and Robert has five children.

Millie whose estate is estimated to be worth approximately $90 million, suffered a stroke in April 2018 following which she has lacked testamentary capacity. Millie is presently being cared for at a facility and requires a high degree of care for daily living. Her cognition is severely impaired.

On 14 May 2018, orders were made appointing Sharonne and Robert as Millie’s financial managers under the Guardianship Act.

Millie had made at least two wills; on 13 June 1972 (the 1972 Will), with codicils made on 5 December 1973 and 13 July 1978 and on 2 November 2001 (the 2001 Will).

The 2001 Will revoked the 1972 Will. However, the original of the 2001 Will has not been located and Millie was heard to say, several times after the date of the 2001 Will, that she had no will – giving rise to the presumption that she destroyed the 2001 Will intending to revoke it.

Between November 2015 to April 2017, Millie had several conversations with Carolyn Deigan, a solicitor, in which she stated that she did not have a Will, did not know who to leave her money to and did not know who to trust to be her executors.

Carolyn prepared a draft will dated 22 May 2017 (the Draft Will). Although Millie did not execute any will she subsequently expressed her intentions in various discussions.

Millie and Anthony regularly engaged in very general discussions about her estate. In late 2016 or early 2017, Millie told Sharonne and Anthony that she had been thinking of leaving him a substantial asset in her Will but had been unsure about whether to tell him because of a fear that that knowledge might spoil Anthony and stop his drive and ambition.

Anthony brought an application for a statutory will; s18 of the Succession Act 2006 provides that a Court may authorise a will to be made, altered or revoked for a person without testamentary capacity – the Court must satisfy the following criteria:

  • The proposed will (or alteration or revocation) accurately reflects the intentions of the person as if they had testamentary capacity, and
  • the person lacks testamentary capacity, and
  • it is reasonable in all of the circumstances for the court to authorise the will and make the orders.

At first instance, the Court dismissed the application with costs, as Millie’s procrastination about making a Will suggested that her testamentary intentions weren’t ‘reasonably likely’.

On appeal, the Court considered that Millie making the Draft Will notwithstanding her comments that she did not agree with its contents, indicated a reason­able likelihood that she intended to have a Will produced

‘[t]he likelihood of making a will required the Court to inquire into the evidence as to the hypothetical subjective state of mind of Testator.’

However, even if the Court is satisfied that a proposed will is reasonably likely to be one that would have been made by a person with testamentary capacity, the Court must also consider the appropriateness of making an order.

The Court was satisfied with the evidence that Millie intended to make a Will; having had regard to the gifts made by the 2001 Will, the gifts proposed by the Draft Will and the gifts discussed with Carolyn- the Court concluded that the Draft Will reflected, to a very considerable extent, Millie’s wishes as to the disposition of her estate.

The respondents have sought leave to appeal the decision to the High Court

Presence; a ”Gentlewoman” and her maid

In England & Wales a Will must be witnessed by people in the ‘presence’ of the Will maker s9(c) of the Wills Act 1837(“the Act”) provides

“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

I posted about a woman who went to her attorney’s office to execute her will in the 1770’s and the influence that it has regarding remote witnessing of documents today.

In the 18th century, it was uncommon for English wills to be made by women. In 1779 Honora Jenkins “Gentlewoman” (the parish burial register records her as also being a widow) was entered into the probate register of the Prerogative Court in York.

Prerogative Courts in Canterbury and York had jurisdiction to grant probate or administration where the deceased left an estate above £5 within the diocesan boundaries of York or in more than one diocese in the northern province.

Honora’s is one of a handful of women’s names on that page of the register; two were identified as widows, one as a spinster.

Honora was born in 1720 and married John Jenkins, a customs house agent in 1747. On her father’s death in 1760, Honora inherited his estate in her own right expressed in his will as

”not in any way subject to the debts or control of her husband”

She also inherited the estate of the last Brooke baronet an uncle who died a lunatic and unmarried in 1770.

Honora was childless and had been widowed; the date she made her will isn’t known but when she died in 1778 her estate was left to a Mr Dade.

The validity of Honora’s will was tested in 1781 by the Court of Chancery in Casson v. Dade

Honora had given instructions to her solicitor to prepare a will attended his office to sign it and have it witnessed, where –

”Being asthmatical and the office very hot, she retired to her carriage to execute the will, the witnesses attending her: after seeing the execution they returned into the office to attest it”

Honora’s maid gave evidence that the carriage horses had reared up and moved the carriage back to bring the window and the witnesses attesting their signatures into Honora Jenkins’ line of sight; immediately after the attestation, the witnesses took the will to her, and one of them delivered it to her, telling her they had attested it, upon which she folded it up and put it into her pocket (which served a similar purpose as a handbag does today).

New South Wales, COVID19 & Remote Witnessing

In New South Wales Section 6 of the Succession Act provides that a Will isn’t valid unless it is in writing and signed by the Will maker (or by some other person in the presence of and at their direction ), and the signature is made or acknowledged by the Will maker in the presence of two or more witnesses present at the same time, and at least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Casson v Dade (1781) 28 ER 1010 established visibility as the test of “presence”- the Will maker who suffered from asthma rested in her coach outside her solicitors’ office after signing her Will before two witnesses. Due to a fortunate series of events, the coach had been parked in such a way that it afforded a view of the interior of the solicitor’s office; the Court held the witnesses had signed in the Will makers presence.

In New South Wales today Parliament passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“the regulation”) allowing for the witnessing and attestation of documents to take place by audiovisual link.

An “audiovisual link” is defined as “technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”.

A document is defined as a will, power of attorney or enduring power of attorney, deed or agreement, an enduring guardianship appointment, an affidavit, (including an annexure or exhibit to the affidavit) and statutory declaration.

Remote witnessing of signatures may be performed by audiovisual link, so long as the witness: observes the signatory sign the document in real-time; attests this by signing the document or a copy of the document; is reasonably satisfied that the document the witness signs is the same document or a copy of the document signed by the signatory; and endorses the document, (or a copy of the document) with a statement specifying that the document was witnessed in accordance with the regulations.

The regulations further state that a witness may sign a counterpart of the document, or by countersigning a copy of the signed document the signatory scans and sends the witness electronically.

The witness must sign as soon as practicable after witnessing the signatory sign of the document. However, this does not limit the other ways in which a witness may confirm they witnessed the document.

The regulation made under s17 of the Electronic Transactions Act 2000 (NSW) will expire on 26 September 2020, unless this date is changed by further regulation or resolution of Parliament.

Remote Witnessing in the Time of COVID19

The extraordinary nature of the COVID19 global pandemic has motivated some people to either make or revise their wills to reflect their changed circumstances In order to comply with the legislative formalities in each jurisdiction, a will must be properly signed and witnessed.

In Australia, each jurisdiction is slightly different but generally, the requirements for executing a formal will are that the document is in writing and signed by the Will maker with the intention the document is to be their will in front of at least two witnesses who must be mentally competent; in order to confirm that the will-maker’s signature, made in their presence was genuine.

Although no longer necessary, most wills have an attestation clause recording the circumstances of the signing and witnessing of the will.

New South Wales

In NSW s6 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made on 30 March 2020 provides that a person must not participate in a gathering in a public place of more than 2 persons unless it is a gathering of persons for the purposes of work; which includes work done as a volunteer or for a charitable organisation.

United Kingdom

In Scotland powers of attorney may be witnessed and certified by video. Similarly, the Scottish Law Society has issued guidance that a professional will draftsman might act as a witness on a video call provided that they are not an executor.

However in England & Wales s9(c) of the Wills Act 1837(“the Act”) provides that

“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

Remote witnessing introduces evidential difficulties concerning the question of whether or not the document signed by the testator is the same document signed by the witnesses. In order to satisfy the requirement as to the testator’s presence, they must have been in a position to see the witnesses sign.

Casson v Dade (1781) 28 ER 1010 approved a will where the witnesses signed the will inside the offices of the lawyer whilst the testatrix was in a carriage outside but in the line of sight of the witnesses.

If you were in a position for the Will maker to sign in front of a window while the two witnesses watch from outside; then pass the Will to the two witnesses to sign while the Will maker watches them sign through the window. However, this could be difficult to arrange.

The overriding purpose of the Act is to prevent fraud and ensure the veracity of the document (as the Will maker is not in a position to give evidence about the circumstances in which the Will was made) may weigh against interpreting s. 9 of the Act as permitting remote witnessing.

The BBC reports that Wills have been held in place by windscreen wipers and signed on a car bonnet in order to meet the requirements under the Act. Ministers say there are no plans to relax the strict rules. As such it wouldn’t be possible using video technology.

United States

In the United States reports that documents are being signed at meetings arranged in parking lots where witnesses are able to watch through a car windshield as people sign their document before safely exchanging them.

On March 20, New York Governor Andrew Cuomo allowed remote online notarisation of documents — one of the more than 20 US states to provide a solution to this challenge of self-isolation.

Canada

In Canada, the Ontario government has amended the Succession Law Reform Act to enable legal professionals to witness the signing of wills and powers of attorney through the use of audio-visual communication technology such as Skype or Zoom. Similar legislation has been passed in other Canadian provinces, including British Columbia and Quebec

COVID19 & Will making

Almost 60% of adult Australians have made a will which is more favourable in comparison with the reported rates in the UK and the US.

Although it has been reported that the likelihood of making a will increases with age (93% of Australians over 70 have a will) half of the population aged 40-49 have a will; 35% of Australians under thirty with financial dependents have a will but most younger people do not have a will.

Although 40% of Australians do not have a will, over half are planning to make one – with procrastination the main reason for not having a current will.

Few people make a deliberate decision not to make a will; including having few assets, not having children or dependents, being from a cultural group in which will making is not normative behaviour and/or having confidence that family members will manage assets appropriately and a will is not needed.

Similarly, as most Australians have made binding superannuation nominations, and some non-will makers held assets jointly and they weren’t non-planners with few assets.

People usual make a will following an important life event- getting married, having children or buying a house were the main triggers for making a will. Importantly knowledge of the consequences of intestacy is not a motivation for either making or not making a will.

Becoming ill or the illness, death of a partner, relative or friend, acting as an executor, changes in family circumstances and planning to undertake long-distance travel are triggers to make a Will.

Currently, we are experiencing a medical crisis where a significant and ongoing person-to-person spread of an infectious disease is occurring in multiple countries around the world at the same time. The impact of coronavirus on the wider community is unprecedented.

If you wish to make a Will, contact me and I will be able to conveniently and expertly advise you on your estate and assist in preparing a simple will enabling the distribution of your estate in line with your wishes