Reported Decision : 76 NSWLR 22 1 ASTLR 440 New South Wales Supreme Court CITATION : Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530 HEARING DATE(S) : Re Fenwick: 15 December 2008 Re 'Charles': 10 February 2009 JUDGMENT DATE : 12 June 2009 JURISDICTION : Equity Division and Probate List JUDGMENT OF : Palmer J DECISION : Applications granted. CATCHWORDS : SUCCESSION – STATUTORY WILL – Examination of historical antecedents – correct approach to interpretation and application of statutory will legislation in New South Wales – whether authorities in other jurisdictions of assistance – categories of application – "lost capacity" case – "nil capacity" case – "pre-empted capacity" case – the proper approach in each category. - PRACTICE AND PROCEDURE – What evidence is required – when intervention by the Court is justified – procedure in unopposed applications. - Administration of Estates Act 1925 (UK) - Adoption Act 2000 (NSW) - Children (Care and Protection) Act 1987 (NSW) – s 72 - Civil Procedure Act 2005 (NSW) - s 56(1), s 71(d), s 71(f) - Family Provision Act 1982 (NSW) - Law of Property Act 1925 (UK) – s 171(1) - Mental Capacity Act 2005 (UK) - Mental Health Act 1959 (UK) – s 102, s 103 LEGISLATION CITED : - Mental Health Act 1983 (UK) – s 95, s 96 - Probate and Administration Act 1898 (NSW) – s 61B(5) - Protected Estates Act 1983 (NSW) - Statute of Distributions (23, 23 Charles II, c.10) - Statute of Wills (32 Henry VIII, c.1) - Succession Act 2006 (NSW) – Chapter 2, Pt 2.2 Div 2, s 16, s 18, s 19, s 20, s 21, s 22, s 25, Chapter 3 - Testator's Family Maintenance Act 1900 (NZ) - Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW) – s 3(1), (1a) - Wills Act 1997 (Vic) – s 26(b) - Wills, Probate and Administration Act 1898 (NSW) – s 6A CATEGORY : Principal judgment - B (A Patient), Re [2006] 1 WLR 278 - Banks v Goodfellow (1870) LR 5 QB 549 - Blair v Duncan [1902] AC 37 - Bosch v Perpetual Trustee Company, Limited [1938] AC 463 - Boulton v Sanders (2004) 9 VR 495 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Bryant v Blake [2004] SASC 369 - C (a patient), In re [1991] 3 All ER 866 - Chichester Diocesan Fund & Board of Finance v Simpson [1944] AC 341 - Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 - D (J), In re [1982] 1 Ch 237 - Darling, In re (1888) 39 Ch D 208 - Davey, In re [1981] 1 WLR 164 - DML, In re [1965] 1 Ch 1133 - Dominion Insurance Company of Australia Ltd and the Companies Act, Re (1980) 4 ACLR 765 - Evans, In re (1882) 21 Ch D 297 - Freeman, In re [1927] 1 Ch 479 - G v Official Solicitor [2006] EWCA Civ 816 - Goodman v Windeyer (1980) 144 CLR 490 - Greene, In re [1928] Ch 528 CASES CITED : - Grimond v Grimond [1905] AC 124 - Harrison, In re; Turner v Hellard (1885) 30 Ch D 390 - Harriton v Stephens (2006) 226 CLR 52 - Hill v Hill [2001] VSC 83 - Hinde, Re; ex parte Whitbread (1816) 2 Mer 99 (35 ER 878) - Hoffmann v Waters [2007] SASC 273 - L (WJG), In re [1966] 1 Ch 135 - Lieberman v Morris (1944) 69 CLR 69 - Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628 - M, Application of (2000) 50 NSWLR 401 - Monger v Taylor [2000] VSC 304 - P, Re [2009] EWHC 163 (Ch) - Palmer, Re the will of [2003] VSC 21 - Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 - Pyrenees Shire Council v Day (1998) 192 CLR 330 - RH v CAH [1984] 1 NSWLR 694 - Roberts v Repatriation Commission (1992) 111 ALR 436 - Scott v Davis (2000) 204 CLR 333 - Singer v Berghouse (No 2) (1994) 181 CLR 201 - Smith, b. (1869) LR 1 P&D 717 - Van Alst v Hunter (1821) 5 Johns Ch 148 - Chief Justice's Law Reform Committee (Victoria) "Report on Wills for Mentally Disordered Persons", 1985 - Gordon, D.M. "Delegation of Will-Making Power" (1953) 69 LQR 334 - Hardingham Neave Ford "Wills and Intestacy in Australia and New Zealand" (1983) Ch 14 - Holdsworth "The history of English law before the time of Edward 1" Vol III (3rd Ed) Ch V TEXTS CITED : - The Law Commission (UK) Report 231: Mental Incapacity (1995) - Law Reform Commission NSW: "Discussion Paper 20 – Wills For Persons Lacking Will-Making Capacity", 1989 - Law Reform Commission NSW: "Report 68 Wills for Persons Lacking Will-Making Capacity" (1992) - Pollock & Maitland "The history of English law before the time of Edward 1" (1895) Vol II, Ch VI - Powell, Mr Justice "Recent Developments in New South Wales in the Law Relating to Wills" (1993) 67 ALJ 25 PARTIES : Re Fenwick: John Robson Fenwick (Plaintiff) Re 'Charles': Minister for Community Services (Plaintiff) FILE NUMBER(S) : SC 119046/08; 5958/08 COUNSEL : Re Fenwick: M. Meek, Ms R. Kako (Plaintiff) Re 'Charles': Ms K. Eastman (Plaintiff) SOLICITORS : Re Fenwick: Diamond Conway (Plaintiff) Re 'Charles': I.V. Knight, Crown Solicitor (Plaintiff) PALMER J. 119046/08 Re Fenwick: Application of J.R. Fenwick 5958/08 Re 'Charles' JUDGMENT 12 June, 2009 Introduction 1 These two cases are the first in which this Court has had to consider and apply Chapter 2, Pt 2.2, Div 2 of the Succession Act 2006 (NSW), which confers power on the Court to authorise the Registrar to make, alter or revoke a will on behalf of a person who lacks testamentary capacity. A will made in accordance with these provisions is called "a statutory will". 2 The facts of the two cases are widely different. In proceedings 119046/08 (Re Fenwick: Application of J.R. Fenwick) the incapacitated person is a sixty year old man who had a made a will some ten years before he suffered an incapacitating accident. His elder brother seeks an order authorising a statutory will so that a codicil to the will may be made which will avoid the possibility of an intestacy and, in a not unlikely circumstance, the vesting of the whole estate in the Crown as bona vacantia. 3 In proceedings 5958/08 (Re 'Charles'), the incapacitated person is a child of eleven years who suffered severe and irreversible brain injury at the age of four months. He received a victim's compensation award in the sum of $50,000. The child – "Charles" is a pseudonym given to protect anonymity – has been placed under the care of the Minister for Community Services pursuant to the then s 72 Children (Care and Protection) Act 1987 (NSW) and the compensation award is held by the Public Trustee of New South Wales upon trust until Charles reaches the age of eighteen years. 4 The Minister seeks the authorisation of a statutory will for Charles so as to avoid Charles' estate passing on intestacy to his parents, who are suspected of having caused his injuries. 5 The widely differing circumstances of the two cases provide an opportunity to explore some of the principles which should guide the Court in applying these new statutory provisions. In the first case, the incapacitated person validly expressed his testamentary intentions before he lost testamentary capacity. In the second case, the incapacitated person has never been able to form any testamentary intention. In two such very different circumstances, upon what criteria is the Court to be satisfied, as it must be under s 22(b) of the Act, that the proposed statutory will "is, or is reasonably likely to be", one that would have been made by the incapacitated person, if he or she had testamentary capacity? Does the Court look for subjective intent, even in cases where none could ever have been formed? Does the Court apply an objective standard, i.e. what a reasonable person of testamentary capacity would have done in the circumstances? Does the Court apply sometimes one test, sometimes the other, and sometimes a mixture of both? 6 Before turning to the facts of the cases, I should set out the antecedents of the "statutory will" and examine how similar provisions in the United Kingdom and in other States of Australia have been interpreted. The exercise begins with some delving into legal history, for which I make no apology. When you are setting off into unchartered territory for an uncertain destination, it is generally useful to know where you are now and how you got there. 7 This review is not merely of academic interest. It shows, I think, that the law in the United Kingdom as to statutory wills had reached a highly unsatisfactory state by the time that Australian jurisdictions began incorporating similar statutory will provisions into their succession legislation. In cases in which an incapacitated person had never been able to form even the most rudimentary testamentary intention, the English Courts were resorting to a legal fiction in purporting to ascertain what testamentary disposition that person subjectively would have intended to make. Even where the incapacitated person had previously expressed some valid testamentary intention, the Courts were attributing to him or her a new testamentary intention upon the basis that the person, if temporarily restored to testamentary capacity, would have changed his or her mind. The fiction was employed to disguise, needlessly, that what the courts were really doing in such cases was making decisions, objectively based, in the best interests of the incapacitated person and his or her family. 8 The law in the United Kingdom has recently been rationalised by a major statutory amendment, but in New South Wales and the other Australian States we are left with the provisions copied from, or inspired by, the earlier United Kingdom legislation. In applying the Australian legislation, Courts of other States have been using the United Kingdom cases as guides. Problems of the same kind as beset the English Courts are likely to arise. 9 The difficulties stem from the fact that the Australian legislation, like the previous United Kingdom legislation, endeavours to accommodate several social policies which can come into conflict in particular cases. First, the testamentary freedom of the individual, being a basic element of the right to property, should not be usurped by the State, or by others with the State's assistance. Second, testamentary dispositions which have previously been validly made by an incapacitated person may defeat claims or expectations which contemporary society regards as just and reasonable. Third, the wishes of mentally incapacitated persons, if known, should be respected. Fourth, laws of intestacy already provides for what is to happen in the absence of will; why should that law apply differently to persons with testamentary incapacity? 10 These difficulties come to a head in s 22(b) of the Succession Act. By that subsection the Courts are required to apply a briefly stated, but critical, test for determining the appropriateness of a proposed statutory will. The test depends upon the ascertainment of actual or likely testamentary intention but it must be applied in at least three widely differing factual categories of cases; the Act gives no express guidance as to how the Courts should apply the test in these different contexts. 11 It is necessary, therefore, to trace some of the history of the development of the law in this area in order to appreciate the competing tensions which underlie the deceptively simple words of s 22(b) and the difficulties of application which they cause. Will-making and the freedom of the individual 12 The suggestion that a Judge should be empowered to "create" a will for anyone would have been met with outrage in the mid-19th century, particularly from the judiciary. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ said: "… the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property … The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law." 13 The "unfettered discretion" which the law gave to a testator with testamentary capacity was jealously guarded as "one of the most efficient means which (a man) has in protracted life to command the attention due to his infirmities" – a sentiment one might have attributed to Dickens' cynical attorney, Mr Tulkinghorn, in Bleak House but which was, in fact, expressed by Chancellor Kent in Van Alst v Hunter (1821) 5 Johns Ch 148, at 159, and repeated with gloomy approval by Cockburn CJ in Banks. 14 Indeed, so strong was the conviction that the individual testator was the best person in all the world to dispose of his testamentary bounty that the exercise of the freedom of disposition had, by the mid-19th century, become not only a right but a duty which the testator could not delegate to anyone else, such as by a power of appointment of testamentary beneficiaries (other than charities). In b. Smith (1869) LR 1 P&D 717, Lord Penzance said: "… a testator cannot confide to another the right to make a will for him …" See also to the same effect Blair v Duncan [1902] AC 37, at 47; Grimond v Grimond [1905] AC 124, at 126; Chichester Diocesan Fund & Board of Finance v Simpson [1944] AC 341, at 348 per Viscount Simon LC; Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628, at 632 per Barwick CJ; see also D.M. Gordon "Delegation of Will-Making Power" (1953) 69 LQR 334. 15 It must be remembered, however, that by the beginning of the 19th century complete testamentary freedom to dispose of all of one's property was a relatively recent development in England. In the 13th century, with minor exceptions, wills disposing of realty were not permitted, freehold land passing to the owner's heir at law. As to personalty, by general custom one-third passed to a man's widow, one-third ("the bairns' part") passed to his children, and only the remaining third ("the dead's part") could be disposed of by will, which was usually oral and communicated by the dying man to his confessor. Except in cases of sudden death, to die intestate as to personalty was regarded as disgraceful, as it often meant that a man had died unshriven. 16 It was not until the enactment in 1670 of the Statute of Distributions (23, 23 Charles II, c.10) that a scheme for distribution of personalty on intestacy was established. With minor amendments, it prevailed until the 20th century. As to realty, if there was no heir at law surviving, it escheated to the Crown. It was only in 1540 that the Statute of Wills (32 Henry VIII, c.1) conferred power to dispose of freehold land by will: see generally Holdsworth "History of English Law" Vol III (3rd Ed) Ch V; Pollock & Maitland "The history of English law before the time of Edward 1" (1895) Vol II, Ch VI; Hardingham Neave Ford "Wills and Intestacy in Australia and New Zealand" (1983) Ch 14. 17 The unfettered discretion of a testator to make dispositions of all of his or her property which was judicially entrenched by the end of the 19th century was eroded at the beginning of the 20th. Abandoning Lord Cockburn's pious hope that the natural instincts of mankind could safely be trusted to make better testamentary dispositions than any legislative scheme, parliaments began enacting legislation that provided for the immediate family of a testator in a manner in which, according to contemporary notions of fairness and morality, the testator should have done. The motive of the legislatures was not entirely altruistic: at least one purpose was to relieve the community of having to support those whom the testator's estate should have supported: see e.g. Lieberman v Morris (1944) 69 CLR 69, at 85 per Rich J, and at 91-92 per Williams J; Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, at 513 per Williams J. 18 The tension between the inalienable right of the individual to testamentary freedom and the socially imposed duty to make proper testamentary provision for one's dependents needs to be explored a little further. That tension persists in the statutory will provisions enacted in Australia and is the cause of some difficulty, as I shall explain. Adequate provision and the objective test 19 New Zealand's pioneering Testator's Family Maintenance Act was passed in 1900 and similar legislation followed in Victoria in 1906, New South Wales in 1908, Tasmania in 1912, Queensland in 1914, South Australia in 1918, Western Australia in 1920 and England in 1938: see Bosch v Perpetual Trustee Company, Limited [1938] AC 463, at 466. 20 The New South Wales legislation was re-enacted in the Testator's Family Maintenance and Guardianship of Infants Act 1916 (as amended). The Court was empowered to make adequate provision for the spouse and children of the deceased, whether he or she had died testate or wholly or partially intestate: s 3(1), (1A). Once the Court had found that a claimant had been left without adequate provision for his or her proper maintenance, education or advancement in life, the Court was required to "place itself in the position of the [deceased] and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father": Bosch (supra) at 478-479; Coates (supra) at 509 per Dixon CJ. 21 In 1982, the Testator's Family Maintenance and Guardianship of Infants Act was succeeded by the Family Provision Act (NSW). Similar legislation has been enacted in the other States and Territories. That legislation considerably broadens the category of persons who may apply to the Court for provision out of the estate of a deceased person. However, as is the case under the previous testator's family maintenance legislation, once the Court has found that an "eligible person" has not received adequate provision, it must exercise its own judgment as to what is adequate in all of the circumstances: Singer v Berghouse (No 2) (1994) 181 CLR 201, at 209; Goodman v Windeyer (1980) 144 CLR 490, at 504-5 per Murphy J. 22 It will be seen that the discretion which the Court is to exercise in making provision for a claimant, under both the testator family maintenance legislation and the family provision legislation, is essentially guided by objective considerations: the deceased may have been, in fact, fond and foolish, but the Court in making adequate provision for a claimant, is not to act likewise. This point is of some significance when one comes to consider what considerations guide the Court in determining whether a proposed statutory will is "reasonably likely to be one that would have been made by the person if he or she had testamentary capacity": s 22(b) Succession Act, as I will discuss later. Difficulties arising from mental incapacity 23 While the family provision legislation, in most cases, affords a remedy to those with an unsatisfied claim on the bounty of a deceased person dying testate or intestate, there are some difficulties in succession law with which it cannot deal adequately and other cases with which it cannot deal at all. 24 In the former category, for example, is a case in which a person, having made a will, loses testamentary capacity and cannot make a later will or codicil in order to deal with changed circumstances, such as the death of a sole or major beneficiary. In such a case, if there is no one who can make a successful claim under the family provision legislation to absorb the lapsed bequest, there must be total or partial intestacy. If there is no one to take on intestacy – a surprisingly common occurrence – some, or even the whole, of the estate may go to the Crown as bona vacantia. Another such case is where a person having testamentary capacity loses it before making a will and a distribution on intestacy would produce a result which the person could never have intended. 25 For the sake of convenient reference I will call this category the "lost capacity cases". 26 Another category is cases involving persons who have never had testamentary capacity, usually because of mental infirmity from an early age. In some of these cases, the incapacitated person is possessed of considerable property. Surprisingly often, there will be no "eligible person" who can make a claim under the family provision legislation on the death of such a person intestate because none of the incapacitated person's family survives and he or she has never been able to form any relationship of a kind entitling a claim under the family provision legislation. 27 I will call this category of cases "the nil capacity cases". 28 A third category is cases in which a person, though still a minor and therefore lacking testamentary capacity, was old enough to form relationships and to express reasonable wishes about property before losing testamentary capacity. A common example would be a person of seventeen years of age who suffers severe and permanent brain injury as a result of a motor vehicle accident and is subsequently awarded large damages. I will call this category of cases the "pre-empted capacity" cases. 29 These difficulties were recognised long before any statutory remedy was devised to alleviate them. Prior to the taking effect in 1926 of the Law of Property Act 1925 (UK), the Lord Chancellor alone and, from 1852 onwards, the Lords Justices of Appeal in Chancery, exercising the Lord Chancellor's jurisdiction in lunacy, had used their prerogative in managing a lunatic's affairs for his or her benefit to direct voluntary payments out of his or her income for the benefit of the lunatic's children or for those who had other moral claims. The guiding principle was that it was "not [the court's] business to deal benevolently or charitably with the property of the lunatic" but rather to "do for the lunatic what the lunatic would have done himself if of sound mind": In re Darling (1888) 39 Ch D 208, at 211 per Cotton LJ; Re Hinde; ex parte Whitbread (1816) 2 Mer 99, at 102 per Lord Eldon (35 ER 878); In re Evans (1882) 21 Ch D 297, at 299 per Sir George Jessel MR. 30 The cases show that the Judges had regard, not to what a reasonable person in the situation of the lunatic would have done if of sound mind and aware of all the relevant circumstances, but rather to what the lunatic himself or herself would have done, having regard to what the evidence showed of his or her character and his or her past dealings with the claimant for provision: see esp. In re Evans (supra) at 301. In this, the policy of the law reflected both the absolute and idiosyncratic freedom of testamentary disposition to which Cockburn CJ had referred in Banks and, as well, the aversion to the notion that anyone but the testator could be entitled to make testamentary decisions, expressed in decisions such as in b. Smith (supra), Blair v Duncan (supra) and Lutheran Church of Australia (supra). According to this philosophy, it was not to the point that relatives of the lunatic would literally starve or else be a burden on the public purse, even though the needs of the lunatic were more than amply met out of a large fortune. As Jessel MR observed in Re Evans at 299 when refusing a claim brought by an eighty-one year old impoverished clergyman for a small allowance out of a large estate: "… everyone in this country has a right to necessary food and shelter out of the poor rates … There are voluntary associations for the relief of such persons, but we are not entrusted with the Sign Manual in order to enable us to apply the income of lunatics for the benefit of their poor relations". 31 By clause XVIII of the Charter of Justice 1823 (promulgated pursuant to Geo IV c.96) the Supreme Court of New South Wales had, from its inception, the same jurisdiction over the affairs of mentally incapacitated persons as had the Lord Chancellor in England: RH v CAH [1984] 1 NSWLR 694. 32 Such was the mood of the times in the 19th century. But, as I have noted above, the mood began to change at the beginning of the 20th century, as witnessed by the reintroduction, in the form of family maintenance legislation, of qualifications to the absolute and idiosyncratic right of testamentary disposition. In 1925, a further inroad was made. The antecedents of the statutory will 33 It is now opportune to examine the English cases on statutory wills in order to understand why Australian Courts should resist the temptation to be entangled by them. 34 By s 171(1) of the Law of Property Act 1925 (UK), which came into force in 1926, it was provided: "(1) The Court may direct a settlement to be made of the property of a lunatic or defective, or any part thereof or any interest therein, on such trusts and subject to such powers and provisions as the Court may deem expedient, and in particular may give such directions … (c) where by reason of any change in the law of intestacy or of any change in circumstances since the execution by the lunatic or defective of a testamentary disposition, or of any absence of information at the time of such execution, or on account of the former management of the property or the expenditure of money in improving or maintaining the same or for any other special reason the Court is satisfied that any person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the lunatic or defective or under any testamentary disposition executed by him. (3) This section applies whether or not the lunatic or defective has executed a testamentary disposition and notwithstanding that it is not known whether he has executed such a disposition or not, but does not apply when he is an infant." 35 Section 171(1)(c) is the forerunner of the statutory will in that, although it empowers a settlement inter vivos, it is designed to alleviate the difficulties caused in a "lost capacity" case, i.e. where a material change in circumstances has occurred after testamentary capacity is lost. 36 The new powers conferred by s 171 were first considered by the English Court of Appeal in In re Freeman [1927] 1 Ch 479. It was a classic "lost capacity" case. Before losing testamentary capacity, the incapacitated person had made a will leaving all her property to her sisters. At the time of application, she was eighty-one years of age and her sisters had predeceased her. The applicants were her second cousins and the residuary legatees under her aunt's will. The aunt had looked after the incapacitated person for many years. By a change in the law effected by the Administration of Estates Act 1925 (UK) the right of the applicants, as second cousins, to share in the estate of the incapacitated person on intestacy was defeated. 37 All members of the Court of Appeal thought that the case fell within s 171(1)(c). Lord Hanworth MR considered that the test of "injustice" connoted "unfairness", ascertained in an objective sense: at 487. His Lordship then considered whether the applicants would suffer an injustice in that sense if, by reason of the change in the laws of intestacy, they would not share in the estate of the incapacitated person. One might have thought that the words of the sub-section – "where … the Court is satisfied that any person might suffer an injustice …" – and his Lordship's interpretation of "injustice" as "unfairness" ascertained by objective standards, would have led to the conclusion that the question was: "What provision would a reasonable person, with sound capacity and with knowledge of all relevant circumstances at the time of the application, have done to avoid an unfairness in the distribution of his or her estate?" 38 However, Lord Hanworth applied the test under the old law governing the exercise of the Lord Chancellor's jurisdiction in lunacy, as expressed in In re Darling: "… what is it likely the lunatic himself would do if sane?" (at 488) – seemingly, a search for subjective intention. 39 Applying that test, Lord Hanworth found that the incapacitated person, who had been on good terms with the applicants forty-five years ago, before she lost capacity, would have made further testamentary disposition in order to avoid her estate vesting as bona vacantia and she would have left her estate to the applicants. 40 Sargant LJ, on the other hand, did not apply the principle established in the old lunacy cases. His Lordship said at 489: "The section is based on somewhat different considerations from those on which settlements of the property of lunatics have hitherto been effected under the general jurisdiction in lunacy. Such settlements have depended upon their being considered to be for the benefit of the lunatics themselves, though a large view has been taken as to what is for the benefit of the lunatic and full play has been given to family considerations, such as the establishment of the legitimacy of children or the maintenance of the position of a successor to a title: see Theobald's Law relating to Lunacy, ch XLV(1). Sect 171, on the other hand, authorizes settlements not for the purpose of benefiting the lunatic, but for the purpose of preventing injustice that might be suffered by others, if property were allowed to devolve as on a total or partial intestacy. Such a purpose can hardly be considered as being even indirectly for the benefit of a lunatic …" 41 In approving the proposed settlement, his Lordship had primary regard to the fact that the applicants' family had assumed responsibility for the incapacitated person for some forty-five years. In those circumstances, the applicants had a "moral claim" on the estate of the incapacitated person, which would be defeated upon her death intestate: at 492. It is clear that his Lordship was applying an objective test: not what the incapacitated person herself would have done, if of sound mind, but what was necessary to avoid the defeat of a moral claim. 42 Lawrence LJ also approved the settlement under s 171(1)(c). His Lordship interpreted "injustice" as "unfairness", i.e. unfair by objective standards. However, having regard to the relationship between the incapacitated person and the applicants' family, his Lordship assumed that had the incapacitated person been of sound mind, she would "in all probability" have made a will in favour of the applicants rather than let her estate pass to the Crown. In other words, his Lordship, like the Master of the Rolls, relied upon an imputed intention of the incapacitated person: at 494. 43 A year after Re Freeman was decided, the Court of Appeal again considered the application of s 171(1)(c) in In re Greene [1928] Ch 528. While saying that he adhered to the views which he expressed in Re Freeman, Lord Hanworth seemed to shift his ground as to the test to be applied in approving a proposed settlement. At 546, his Lordship said: "It is plain that the intention of the Legislature was to give power to the Court to act under s 171, where, in its discretion, it thinks it is wise or necessary to do so in the interest of those whose rights have been affected by the new law of intestacy. Next it must be remembered that there is already, under s 117 of the Lunacy Act, 1890, power to deal with the property of a lunatic for the purposes therein defined, which include 'payment of any debt or expenditure incurred for the lunatic's maintenance or otherwise for his benefit.' Sect 171, therefore, must not be construed narrowly as giving powers to be exercised only in the interest of the lunatic, or as discharging his obligations; but also as including the interests of those for whom the intestate might reasonably have been expected to make provision, and those who might suffer an injustice in the sense given to those words in In re Freeman ." 44 It seems that in this passage his Lordship is propounding the test: for whom might the incapacitated person reasonably have been expected to make provision so that it would be "unfair", in an objectively determined sense, if no provision were made under s 171(1)(c)? Having ascertained the persons for whom provision would be expected, what provision does the Court (not the patient) think "wise and necessary"? 45 Sargant LJ examined the facts of the case and, as he had done in Re Freeman, considered whether they would produce "injustice", in the sense of unfairness. His Lordship did not endeavour to impute to the incapacitated persons any particular intention in order to do, under s 171, what they would have done if they had been of sound mind. His Lordship was clearly applying an objective, rather than a subjective, standard. 46 Lawrence LJ, in approving the proposed settlement, did not say that the Court was doing what the incapacitated persons would have done if they had been of sound mind. Rather, his Lordship said that it was "not unreasonable to suppose" that the settlements under which the incapacitated persons held their interests would have been drafted differently had it been known that the incapacitated persons would ultimately lose testamentary capacity: at 562. His Lordship, therefore, seems to be applying a test as to what is objectively reasonable in order to avoid the "unfairness" which results from the laws of intestacy taking effect without modifications in the circumstances then prevailing. 47 Thus far, the law as to making provision on behalf of those incapable of testamentary disposition seemed to be travelling in the direction that whether provision inter vivos should be made was to be determined by reference to what a reasonable person with capacity would do in all of the circumstances. The law in the United Kingdom becomes unworkable 48 In 1959, s 171 of the Law of Property Act was replaced by s.102 and s.103 Mental Health Act 1959 (UK). Those sections relevantly provided: "102(1) The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient – (a) for the maintenance or other benefit of the patient, (b) for the maintenance or other benefit of members of the patient's family, (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or (d) otherwise for administering the patient's affairs. 102(2) In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient, and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the judge in lunacy shall apply to property under the control of the judge; but subject to the foregoing provisions of this subsection the judge shall, in administering a patient's affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable. 103(1) Without prejudice to the generality of the foregoing section, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section, and in particular may for those purposes make orders or give directions or authorities for – … (d) the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in paragraphs (b) and (c) of subsection (1) of the foregoing section." 49 The new provisions of the Mental Health Act were considered by Cross J in In re L (WJG) [1966] 1 Ch 135. The applicants sought an order directing a settlement of the patient's property on his nephews and nieces and their families. Those persons, being collateral relatives, did not qualify as " members of the patient's family", for the purposes of s 102(1)(b), as his Lordship held at 140, consistently with his conclusion to the same effect in In re DML [1965] 1 Ch 1133 at 1137. Accordingly, the first question which his Lordship had to determine: were the applicants "persons for whom the patient, if of sound mind and properly advised, might reasonably be expected to provide", and therefore within s 102(1)(c). The question, it should be noted, is concerned only with identifying who is entitled to benefit from a settlement under the section, not what such persons should receive under the settlement. 50 The patient was sixty-eight years of age. He became mentally incapacitated at the age of seventeen years and had been looked after by his mother and the family chauffeur. Since his mother's death in 1941 he had lived in a mental hospital. His only visitors in the last twenty-four years had been his sister and the family chauffeur, who visited every week. He had inherited a considerable fortune, which produced an income far in excess of his needs. The patient had never been in a position to make a will and would inevitably die intestate. 51 Cross J considered whether, given that the Act required him to make the counter-factual assumption that the patient was not mentally disordered, there were any further assumptions necessarily inherent in that assumption which had to be made. His Lordship held, in effect, that there were no such further assumptions and that the patient had to be taken as he was, although assumed to be sane. 52 At 144-145 his Lordship said: "It seems to me, therefore, that I must assume that the patient becomes a sane man for a sufficient time to review the situation but knows that after a brief interval of sanity he will once more be as he was before. On that footing he would see himself a bachelor of 68 who will never marry or have a family. He would realise that he was the owner of some £130,000 derived mostly from his relatives but partly from accumulations of income. He would know that he will never have any friends – other than [the chauffeur] and [the sister] – or any interests. He would know that on his death, if he makes no settlement, half his property will be absorbed in death duties. He would know that he will never make a will and that half the balance of the fortune, or, if his sister predeceased him, the whole of it, will pass to his nephews and niece or their families. Although he does not know them and knows that he never will know them, he would know their financial circumstances and, in particular, the special needs of Antony G. He would know that his sister, whom he knows and for whom I may fairly assume he has some affection, wants none of his property but is anxious that he should make a settlement on his other relatives and also make some provision for [the chauffeur], whom he knows and to whom he is grateful. Finally, he would know that in all probability he will be maintained by the state for the rest of his life and that not more than £200 or so of his income a year will ever be spent on him and that all the balance will be accumulated. Making these very curious assumptions I have no doubt that the patient would execute an irrevocable settlement of a substantial part of his property; …" 53 As his Lordship observed, the assumptions of fact which he was required to make in ascertaining what the patient would actually have done if sane were, to use his Lordship's words, "very curious". They might, indeed, be described as highly artificial. 54 It is difficult to distinguish the process of making such artificial assumptions from merely making a determination on the basis of what a reasonable person with full capacity would do in the relevant circumstances of the case – that is, an objective assessment by the Court. 55 The artificiality of enquiring what the patient, if sane, would actually have done was not lost upon Fox J in In re Davey [1981] 1 WLR 164. Section 103(1) of the Mental Health Act had been amended in 1969 to include in a new sub-paragraph (dd) a power to give directions, for the purposes of s 102, for the execution of a will on behalf of the patient making any provision which the patient could (not would) have made if he were not mentally disordered. The applicants sought an order for the execution of a statutory will under the new provisions. 56 The patient was an unmarried lady of considerable property. At the age of ninety-two, when she still had testamentary capacity, she made a will in favour of various relatives. Shortly afterwards, her condition deteriorated and ultimately her estate was placed under the control of the Court of Protection. It was then discovered that, not long after she had made her will, she had been taken to a Registry Office by a man employed in the nursing home in which she resided and she had gone through a ceremony of marriage with him. Her acquaintance with him was as her carer in the nursing home and was very brief. He was forty-four years her junior. The effect of the marriage was to revoke the patient's will in favour of her relatives. 57 At the time of the application, the patient was about to die intestate and her husband of a matter of months would succeed on intestacy to a half-share in her estate. The relatives, who were beneficiaries under the revoked will, applied successfully for an order under s 103(1) directing execution of a new will in the same terms as the revoked will. 58 At 171, Fox J said: "I do not think that, in substance, there is any material difference in the present case between the factors which the Court of Protection would have been required to consider if the question of what was a proper testamentary disposition for the patient had been fully argued before it and those which the High Court would have to consider on an application under the Inheritance Act. I can see that there may be some difference of emphasis; in an application under the Inheritance Act, Mr Davey as applicant has to establish that the will does not make reasonable financial provision for him. But in the Court of Protection, the essential question in the end would have been what if anything would be reasonable provision in all the circumstances for the various contestants ." [Emphasis added] 59 In In re D (J) [1982] 1 Ch 237, Sir Robert Megarry V-C rejected the objective test approach of Fox J in Re Davey and took the artificiality of the assumptions enunciated by Cross J in In re L (WJG) several stages further. 60 It is first necessary to recount briefly the facts of the case before Megarry V-C because, with very great respect, it seems to me that, in applying the reasoning in In re L (WJG) to the case before him, his Lordship misapplied the provisions of the legislation. 61 The application in In re D (J) was for the authorisation of a statutory will. At the time of the application, the patient was eighty-two years of age. She had five children, all still living. Twenty years earlier, while still of testamentary capacity, she had made a will leaving her house to one of her daughters, "A", and the residue of her estate to all five children equally. "A" had taken the major responsibility for looking after the patient. Some years after the will was executed, the patient sold the house, so that the specific devise to "A" was adeemed. "A" continued to assume the major role in caring for the patient, especially after she developed dementia and, accordingly, lost testamentary capacity. 62 As matters stood at the time of the application, when the patient died "A" would take only a fifth share of the whole estate. All children agreed that she should receive a larger share and should be compensated for the ademption of the devise in the still-extant will. The application, made by "A" and another daughter of the patient, therefore proposed a codicil giving "A" a specific legacy. The only dispute was as to the amount. 63 Because the proposed codicil was in favour of a daughter of the patient, it was for the benefit of a "member of the family" of the patient and therefore the application was within s 102(1)(b) of the Mental Health Act: see In re DML (supra). Reading together the relevant provisions of s 102(1)(b) and s 103(1)(dd), the Judge was empowered to: "… do all such things as appear necessary or expedient for the benefit of members of the patient's family and for that purpose [the Judge] may make such orders as he thinks and, in particular, may make orders for the execution for the patient of a will making any provision which could be made by a will executed by the patient if he were not mentally disordered". 64 The power given in an application under s 102(1)(b) for a statutory will is not to do what the patient would have done if sane but, rather, to do whatever appears necessary or expedient to the Judge for the benefit of a family member. There is no enquiry required as to what provision the patient himself or herself might be expected to make. There is no requirement that the proposed will contain a testamentary disposition that would be made by the patient; all that is required is that the provision could be made. In other words, the statutory will cannot make a disposition of a kind which could not be effective in law if made by an ordinary will. 65 The words of s 102(1)(b) and s 103(1) strongly suggest that in an application under those provisions the approach is not that of the old lunacy cases – what would the patient have done himself, if sane – but, rather, what in all the circumstances is reasonably necessary or expedient for the benefit of the family member. 66 Curiously, Megarry V-C did not refer to the fact that the application before him was for the benefit of a family member of the patient and therefore fell to be dealt with under s 102(1)(b). His Lordship based his reasoning entirely upon the judgment of Cross J in In re L (WJG), although Cross J had made expressly clear at 140F-G that the application before him was made under s 102(1)(c), not s 102(1)(b), and it was for that reason alone that the applicants had to satisfy him that the beneficiaries of the proposed statutory will were persons for whom the patient, if sane, might reasonably be expected to provide. 67 At 243-244 of his judgment, Megarry V-C set out five propositions of general application in all statutory will cases. His Lordship said that those propositions emerged from the judgment of Cross J in In re L (WJG). I shall take each one in turn. 68 The first proposition was that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made. 69 This proposition was advanced by Cross J in In re L (WJG) because s 102(1)(c) in terms required identification of beneficiaries or objects of the proposed settlement by reference to whom or what the patient might be expected to benefit if of sound mind. The proposition had no application to the case before Megarry V-C because s 102(1)(b), relating to members of the patient's close family, required no such identification test. 70 The second proposition was that it is assumed that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed, with the prognosis as it actually is. 71 This proposition, like the first, was expressly stated by Cross J in In re L (WJG) to relate to an application under s 102(1)(c). It was not relevant to the case before Megarry V-C. 72 The third proposition and its supportive reasoning should be set out in full: "The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the patient on the Clapham omnibus. I say that because the will is being made by the court, and so by an impartial entity skilled in the law, rather than the actual patient, whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. In In re Davey [1981] 1 WLR 164, 171, Fox J. is reported as saying, in relation to a will made by the Court of Protection, that the essential question was 'what if anything would be reasonable provision in all the circumstances for the various contestants', and it could be said that this indicates an objective approach made with the wisdom of the court rather than the approach likely to be made by the patient if restored to full testamentary capacity. I very much doubt if the judge meant to indicate this, and in any case I do not think it is right. The whole approach of Cross J in In re L: (WJG) was that of considering the particular patient, momentarily restored to full mental capacity, as being the settlor. Further, in section 102(1)(c), the question is one of making provision for persons or purposes 'for whom or which the patient might be expected to provide if he were not mentally disordered …'; and I think that this provision governs the making of a will for the patient, and contemplates the particular patient: and see In re CMG. [1970] Ch 574, 575. Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason. But subject to all due allowances, I think that the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. If I may adapt Dr Johnson's words, used for another purpose, the court is to do for the patient what the patient would fairly do for himself, if he could." 73 A number of points should be made. First, his Lordship appears to believe, erroneously, that the application before him is one under s 102(1)(c). 74 Second, his Lordship believes that even in an application under s 102(1)(c) the task of the Court is to put itself in the position of the patient, if sane, and "make the will which the actual patient, acting reasonably, would have made … the Court is to do for the patient what the patient would fairly do for himself, if he could". In short, his Lordship is applying the test for the exercise of the prerogative discretion as to settlements inter vivos under the old lunacy cases. 75 I am not able to understand how such a conclusion follows from the words of s 102(1) and s 103(1)(c). Reading the relevant words of those two sections together, they provide: "The Judge may, with respect to the property and affairs of a patient, do all such things as appear necessary or expedient for making provision for the persons, not being members of the family, or for purposes, for whom or for which the patient might be expected to provide, if not mentally disordered, and the Judge shall, for that purpose, have power to make such orders as he thinks fit for the execution of a will making any provision which could have been made by a will executed by the patient." 76 These words do not require the Judge to put himself or herself into the shoes of the actual patient, with all his or her idiosyncrasies, and to make the will which he or she would have made if sane. The words require the Judge first to identify those persons, not being family members, or those purposes, for which the patient, if sane, might be expected to provide – a question of fact ascertained by the particular circumstances of the patient and by reference also to any wishes which he or she might have expressed when of sound mind. Having ascertained those persons or purposes, the Judge is then to make such provision for them as may "appear necessary or expedient". Appear to whom? Clearly, to the Judge, not to the patient. 77 In determining what dispositions "appear necessary or expedient" the Judge can only apply an objective approach, as Fox J suggested in In re Davey, consistently with the same contemporary concepts of fairness, justice and moral obligation as inform the family provision legislation. 78 So interpreted, the provisions of s 102(1) and s 103(1) establish a sensible, pragmatic and easily understandable means of dealing with the property of an incapacitated person. Interpreted in the way in which Megarry V-C did, the provisions become much more difficult to apply. Courts were required to perform what one High Court Judge later described as "mental gymnastics": Re P [2009] EWHC 163 (Ch), at [38] per Lewison J. 79 The third point to notice is that Megarry V-C himself recognises the inherent difficulty of returning to the principle applied in the old lunacy cases and doing what the patient would have done for himself or herself. What if the Judge were convinced that the patient, though being restored to testamentary capacity, would have made a testamentary disposition which was quite foolish or irresponsible – for example, he would have given all of his estate to a 'gold digging' lover, at the expense of his wife and children. Should the Judge do likewise? 80 Megarry V-C thought not – thus his qualification that the Court should not give effect to the "antipathies or affections of the patient which are beyond reason". But where does this over-riding qualification find expression in the statutory provisions? If it is to be found in the opening words of s 102(1), which vest in the Judge the power to do what appears to him or her necessary or expedient, then one is driven back to the position that it is not the patient's supposed subjective intention which governs the exercise of power but, rather, the Judge's discretion, exercised upon the basis of what is seen, objectively, to be reasonable. 81 The fourth proposition advanced by Megarry V-C was that during the hypothetical lucid interval, the patient is to be envisaged as being advised by competent solicitors. 82 This proposition requires an assumption – in many cases counter-factual – that the patient not only would have had competent legal advice but would have acted in accordance with it. Experience shows that people with sound testamentary capacity not infrequently disregard legal advice as to the reasonable disposition of their estate. 83 The fourth proposition therefore seems directed to ensuring that the result of the statutory will authorised by the Judge is fair and reasonable, judged by objective standards, because those are the standards which a competent solicitor would be assumed to recommend the patient to observe. This proposition dictates reliance upon an obvious fiction in order to produce a result said to represent the supposed actual intention of the patient. 84 The fifth proposition advanced by his Lordship is that, in all normal cases, the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant's pen. 85 That approach would doubtless be taken by a Judge exercising discretion in accordance with the opening words of s 102(1), but why should such an approach be attributed to the actual subjective intention of the patient? Again, the proposition seems to be advanced in order to produce a result that is objectively reasonable in all of the circumstances. 86 The approach of Cross J in In re L (WJG), as developed by Megarry V-C in In re D (J), to the application of s 102 and s 103 both as to settlement inter vivos and as to statutory will cases, came to be know as the "substituted judgment" approach: Re P (supra) at [15]. The high water mark of artificiality 87 There are very few reported decisions of the English Courts on applications for statutory wills, whether before or after the decisions in In re L (WJG) and In re D (J). Doubtless, this was because such applications were determined by Deputy Registrars, and subsequently Assistant Masters, of the High Court who obediently applied In re L (WJG) and In re D (J) as best they could. 88 In 1983, the Mental Health Act 1959 was relaced by the Mental Health Act 1983 (UK). Sections 95 and 96 of that Act were in very similar terms to s 102(1) and s 103(1) of the 1959 Act. 89 In In re C (a patient) [1991] 3 All ER 866, Hoffmann J had to deal with an application for authorisation of a statutory will under the new Act. The patient, now seventy-five years of age, had been severely mentally handicapped since birth. She had never had, and never would have, testamentary capacity. She had lived in a mental hospital since the age of ten years. Few, if any, of her extensive family even knew of her existence. The only person to have taken any interest in her, apart from the staff of the hospital, was a lady from a charitable organisation which befriended mental patients. By the time of the application to the Court, the patient had inherited a substantial fortune. It was obvious that she would die intestate. 90 An application for a statutory will for the patient was made under the new Act by the Public Trustee, who was the receiver of the patient's protected estate. The proposed will provided small legacies to the lady who had befriended the patient and to two relatives of the half-blood, who had assisted the Public Trustee in the application. The will then provided substantial legacies to charitable institutions concerned with the care of the mentally incapacitated, and the residue was given to the patient's next of kin on intestacy. 91 Hoffmann J identified the application as one brought under s 95(1)(c), the equivalent of s 102(1)(c) of the 1959 Act, because the proposed beneficiaries were not members of the patient's family. Hoffmann J adopted the propositions of Megarry V-C in In re D (J), in particular that "the Court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight": at 869. 92 His Lordship observed that in the case before him the patient had never had, since birth, any mental capacity, memory or foresight: "In all relevant respects, the record of her individual preferences and personality is a blank on which nothing has been written. Accordingly, there is no material on which to construct a subjective assessment of what the patient would have wanted to do": at 870(a). 93 His Lordship continued at 870(c)-(d): "I recognise the difficulty in forming a view of what might have been expected from a person who has never enjoyed a rational mind. But I think that in those circumstances the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption." 94 His Lordship then considered the circumstances in which the patient had been cared for throughout her life. He went on: "She would therefore in my view have felt moral obligations to show recognition to the community and to her family. Once one has arrived at the conclusion that the disposition of her property would have been guided by these principles, I do not think it is necessary for the court to be satisfied that the patient would definitely have chosen one particular way of giving effect to them rather than another. A distribution which can be rationally justified as a way of giving effect to these principles would in my view be a provision which the patient 'might be expected to provide', even though a somewhat different distribution could also be so described. The court cannot of course indulge is own whims in these matters. The gifts and will it makes for the patient must be capable of being explained as something which the patient 'might be expected to provide'. But I observe that the statute, recognising the difficulty of arriving at any certainty in these mattes, says 'might' rather than 'would be expected to provide'. In matter of detail, there must be a range of choices which would be equally valid." 95 The artificiality of the substituted judgment approach in In re C – i.e. imputation of an actual dispositive intention to a person who was never able to form any intention at all – is demonstrated in the following passage at 870(h)-871(a): "I think that she would have recognised that although none of her family had ever been to see her, this was not on account of any lack of feeling on their part. None of them appear to have known of her existence. Taking her family as a whole, therefore, I think that she would have wished to distribute her estate equally between them and the community. The recognition of the claims of the community would in my view have taken the form of gifts to mental health charities. I feel confident that a person in Miss C's position would have wished to benefit other people who had suffered from mental illness rather than wider or different charitable purposes. I am less confident about the particular choice which she would have made, but on the principle that people tend to prefer local and familiar causes to those which are more general and remote, I think that she would have wished primarily to benefit mentally handicapped at the hospital or within the area which the hospital serves." 96 The reference to a "person in Miss C's position" indicates that what is, in reality, being sought is not an imputed actual intention of the patient but what a person – doubtless a reasonable person – in her position would do. Erosion of the "substituted judgment" approach 97 In re D (J) and In re C remained good law until the Mental Capacity Act 2005 (UK) radically changed the law as to the treatment of people lacking capacity. However, in one of the few reported cases discussing In re D (J) and In re C – and probably one of the last decided before the "substituted judgment" approach was expressly abandoned by the new legislation – it can be seen that the "substituted judgment" approach had come to be applied in a way which amounted to the Court's objective assessment of what a reasonable person with testamentary capacity would do in the circumstances applying to the patient. 98 G v Official Solicitor [2006] EWCA Civ 816 is the only decision of the Court of Appeal on statutory wills which I have been able to find. The patient had made a will some twenty years earlier, while she still had testamentary capacity. She appointed her son, G, as sole executor and divided her large estate equally between G and her other children. The patient lost testamentary capacity in 2003 and a receiver was appointed to her property. Disputes arose between G and the receiver, and between G and the other children. It was clear that if G remained as executor under the will until the patient died, the administration of the estate would be very difficult. The receiver applied to the Court of Protection to make a statutory will appointing a professional executor in substitution for G. The dispositive provisions of the will were not to be altered. 99 G opposed the application. Relying upon the principles enunciated in In L (WJG) and In re D (J) and In re C, he argued that the Court should do only what the patient herself would have done if of sound mind and that, in the light of her expressed intention in the existing will to appoint him as sole executor and in light of the fact that he had always lived with his mother, was on very good terms with her and had always looked after her, her intention, if she were of sound mind, would undoubtedly be to retain him as sole executor. 100 None of the judicial officers who heard the case, including the Court of Appeal, disbelieved the evidence of G. No judicial officer found as a fact that the patient, if of sound mind, would have removed G as sole executor. 101 The application was first heard by an Assistant Master. According to a subsequent report of the proceedings (Re B (A Patient) [2006] 1 WLR 278) the Assistant Master granted the application and approved a will appointing a proposed executor, the only ground being (280 at [11]): "… that it was in the best interests of the patient for a new will to be executed at once and that, in the light of the inter-family disputes it would be appropriate that a professional be appointed as executor. A decision on that ground can hardly be said to have applied the approach in In re L (WJG) , In re D (J) and In re C . 102 G appealed to a single Judge of the Court of Protection, Sir Francis Ferris. The appeal was dismissed and G appealed to the Court of Appeal. In a unanimous brief judgment, the Court – Mummery, Arden and Moore-Bick LJJ – recounted the submission of G that both the Assistant Master and Sir Francis Ferris had failed to take account of the actual wishes of the patient, to be inferred from the evidence, as required by the authorities: at [16]-[17]. The Court identified that submission as "the only point of substance": [19]. Strangely, the Court thereafter ignored the submission entirely. 103 The following is the full extent of the reasoning of Mummery LJ, with which the other members of the Court agreed: "The general principles guiding the court on an application to make a statutory will were discussed in the judgment of Sir Robert Megarry V-C in Re D (J) [1982] Ch 237 at 243-244, a decision on the similar jurisdiction under the Mental Health Act 1959. The important point for present purposes is that it is the actual individual patient who has to be considered, the function f the court being to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor. A competent solicitor would, in my view, point out to the patient any relevant change of circumstances since the making of the original will. He would draw the patient's attention to the discord that now exists among her three children and advise her about the difficulties in the administration of her affairs and her estate which would follow if G remained as sole executor. He would advise her about the advantages and disadvantages of appointing an independent professional person as executor. A competent solicitor would also advise the patient of the practical advantages of having an executor connected with the receivership in order to keep continuity between the receivership and the executorship. It is also clear that the size and nature of the patient's estate is such that it would be difficult to administer it without any involvement of lawyers and other professionals. Reasonable professional costs and expenses in connection with the administration of the estate are unavoidable. In these circumstances I am satisfied there was no error of legal principle in the exercise of the nominated judge's wide discretion in this matter nor can it be said that he was plainly wrong in affirming the decision of the Master to make a statutory will appointing an independent professional executor in place of G. This court is not entitled to interfere with the judge's exercise of discretion in respect of the appointment of a professional executor in place of G." 104 Several points are to be noted: – the principles enunciated by Sir Robert Megarry V-C in In re D (J) are affirmed, but no further reference is made to them nor is any attempt made to apply them; – the principle is stated that the function of the Court is to do what the patient would fairly do for herself, acting with benefit of advice from a competent solicitor; – the "advice of a competent solicitor" – which can only be the Court's own formulation of what would be reasonable in all the circumstances – is then set out and it is immediately and tacitly assumed that that advice would have been implemented by the patient without question; – the Court relies on the "wide discretion" of the Judge below without indicating in what areas of determination under s 95 and s 96 of the Act the exercise of discretion comes into play. For example, a finding below of what the patient, if of sound mind, would have done having regard to her relationship with G would have been a finding of fact, not the result of the exercise of a discretion. 105 This case shows, I think, that by 2005, when the radically new legislation was introduced, the Courts had for a long time been paying only the scantest lip service to the principles enunciated in In re D (J). As the Assistant Master in G v The Official Solicitor did, they were making decisions having regard to "the best interests of the patient" and they were determining "the best interests of the patient" objectively, having regard to all of the circumstances. 106 It is clear, for one thing, that the "substituted judgment" approach of In re D (J) was inconsistent with contemporary ideas about mental health. In its report (The Law Commission (UK) Report 231: Mental Incapacity (1995)), the United Kingdom Law Commission said at 3.29: "The first element in the checklist establishes the importance of individual views. Realistically, the former views of a person who is without capacity cannot in every case be determinative of the decision which is now to be made. Past wishes and feelings may in any event conflict with feelings the person is still ale to express in spite of incapacity. People who cannot make decisions can still experience pleasure and distress. Present wishes and feelings must therefore be taken into account, where necessary balanced with past wishes and feelings. One of the failings of a pure 'substituted judgment' model is the unhelpful idea that a person who cannot make a decision should be treated as if his or her capacity were perfect and unimpaired, and as if present emotions need not also be considered ." (Emphasis added) 107 The way in which the Courts were actually deciding cases – that is, in accordance with the "best interests" approach – was given effect in the new Mental Capacity Act 2005. As explained by Lewison J in In re P (supra) at [37]-[39]: "… the overarching principle is that any decision made on behalf of P must be made in P's best interests. This is not (necessarily) the same as inquiring what P would have decided if he or she had had capacity. As the explanatory notes to the Mental Capacity Bill explained: 'Best interests is not a test of 'substituted judgement' (what the person would have wanted), but rather it requires a determination to be made by applying an objective test as to what would be in the person's best interests.' I agree. It follows from this, in my judgment, that the guidance given under the Mental Health Acts 1959 and 1983 about the making of settlements or wills can no longer be directly applied to a decision being made under the 2005 Act. I say this for a number of reasons: i) The 2005 Act does not require the counter-factual assumption that P is not mentally disordered. The facts must be taken as they are. It is not therefore necessary to go through the mental gymnastics of imagining that P has a brief lucid interval and then relapses into his former state. ii) The goal of the enquiry is not what P 'might be expected' to have done; but what is in P's best interests. This is more akin to the 'balance sheet' approach than to the 'substituted judgment' approach. The code of practice makes this clear in that it points out that the test of best interests was one that was worked out by the courts mainly in decisions relating to the provision of medical care (para 5.1); iii) The previous guidance was concerned with deciding what P would have wanted if he were not mentally disordered. But the 2005 Act requires the decision maker to consider P's present wishes and feelings which ex hypothesi are wishes and feelings entertained by a person who lacks mental capacity in relation to the decision being made on his behalf; iv) The same structured decision making process applies to all decisions to be made on P's behalf, whether great or small, whereas the previous guidance was specific to the making of a will, gift or settlement. Moreover, it is a decision making process which must be followed, not only by the court, but by anyone who takes decisions on P's behalf; v) In making his decision the decision maker must consider 'all relevant circumstances'. vi) The Act expressly directs the decision maker to take a number of steps before reaching a decision. These include encouraging P to participate in the decision. He must also 'consider' P's past and present wishes, and his beliefs and values and must 'take into account' the views of third parties as to what would be in P's best interests. Having gone through these steps, the decision maker must then form a value judgment of his own giving effect to the paramount statutory instruction that any decision must be made in P's best interests. In my judgment this process is quite different to that which applied under the former Mental Health Acts ." (Emphasis added) 108 It will be seen that, in its eighty year evolution from s 171(1) of the Law of Property Act 1925, the law in the United Kingdom relating to statutory wills has travelled a full circle. After a shaky start in In re Freeman, the objective approach was established in In re Greene. Some fifty years later, In re D (J) re-established the highly artificial "substituted judgment" approach of the old lunacy cases. By 2005 Courts, while paying lip service to the "substituted judgment" approach, were taking the realistic and pragmatic approach that whether a statutory will should be ordered was to be determined having regard to the best interests of the patient, ascertained objectively, and to the wishes of the patient, if known. That approach is now enshrined in legislation. 109 In Australia, however, the statutory will concept was adopted before it had completed its evolutionary cycle in the United Kingdom. The New South Wales Law Reform Commission Report 110 The introduction of the statutory will into Australian succession law began in 1985 with the "Report on Wills for Mentally Disordered Persons", issued by the Chief Justice's Law Reform Committee (Victoria). That Report was soon followed in 1989 with a Discussion Paper published by the New South Wales Law Reform Commission, "Discussion Paper 20 – Wills For Persons Lacking Will-Making Capacity". The problems which had prompted the reference to the Commission from the New South Wales Attorney General were identified thus: "As the law stands, the requirement of testamentary capacity means that many persons lacking will-making capacity are unable to make a will, or if they do, the validity of their dispositions will be in doubt. This may result in an expensive trial at the time probate is sought in order to ascertain capacity. 1.2 The intention of this reference is for the Commission to report on the desirability of creating a scheme whereby testamentary dispositions made by persons lacking capacity could be given effect to, or such dispositions could be made on their behalf. 1.3 Such a scheme would provide a useful solution to a number of problems created by the requirement of testamentary capacity. It would, for example, enable provision to be made on a testator's behalf: (a) for a housekeeper or some other employee of the testator to whom the testator is under an obligation which should be recognised by a legacy or other provision on the testator's death; (b) to ensure that money derived by an incapacitated testator from one side of the family goes to relatives on that side and not to those on the other side of the family; (c) for a stepchild of the testator who would not benefit under a will made before the testator lost capacity, or under intestacy or family provision legislation; (d) to avoid a probate action which the testator's existing testamentary dispositions are thought likely to provoke if left as they are." 111 The scheme proposed in the Discussion Paper was to be based on s 102 and s 103 of the UK Mental Health Act 1959. The Commission referred to the decision of Megarry V-C in In re D (J) as stating the principle that "the court is to have regard, as far as possible, to the actual views and wishes of the patient": para 3.2. Expressed so simply, the principle would not have been difficult to apply: if the incapacitated person has expressed a testamentary wish which is reasonable, it should be given effect; if no such wish has been, or could be, expressed, the Court is to do whatever is reasonable in the circumstances. The difficulties which Australian Judges have encountered in applying the legislation which was later enacted arises from the fact that the principles enunciated in In re D (J) are more artificial and more complex than this simple proposition. 112 The New South Wales Law Reform Commission issued its Report in 1992: "Wills for Persons Lacking Will-Making Capacity" (Report 68). The Report recommended that a will-making scheme should be introduced, not only for those who had lost testamentary capacity but also for those who had never had it, including minors: para 2.31. The Report sets out the structure for a statutory will application which is now embodied in the legislation. Unlike the UK model, there is a two stage process: an application for leave to apply for a statutory will and, if that application is successful, an application for a final order. 113 The factors to be considered by the Court in granting leave include, at 2.19-2.21: "The Commission recommends that the Court should seek to make the will which would have been made by the person lacking will-making capacity if the person had the capacity to make a will at the time of the hearing of the application. (clause 32FH) The Commission recommends that in so doing the Court should consider the following factors (clause 32FJ): a. any evidence relating to the wishes of the person for whom the will is to be made; b. the likelihood of the person acquiring or regaining capacity to make a will at any future time; c. the terms of any valid will previously made by the person and the interests of the beneficiaries under that will; d. the interests of any person who would be entitled to receive any part of the estate of the person if the person were to die intestate; e. the likelihood of an application being made under the Family Provision Act 1982 for or on behalf of an eligible person (within the meaning of that Act) in respect of the property of the person for whom the will is to be made and the provision that the Court might order to be made for the eligible person under that Act; f. the circumstances of any person for whom the person might reasonably be expected to make provision under a will; g. any gift for a charitable or other purpose the person might reasonably be expected to give or make by a will; h. the likely assets of the estate; i. any other matter that the Court considers to be relevant. 2.20 A Guiding Principle. The approach adopted by the Commission is that in determining the provisions of a statutory will the Court shall, so far as is possible, make a statutory will in the terms in which a will would have been made by the person lacking will-making capacity if the person had the capacity to make a will at the time of the hearing of the application. The Commission, by recommending that the Court make a will which the person would have made had he or she had testamentary capacity, intends to direct the Court's attention to the actual person at the time the application is being considered and not some hypothetical person. Sir Robert Megarry, Vice Chancellor, expressed this view in In re D(J) :5 ' … the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight.' The Commission agrees with this approach. 2.21 The Factors. The Commission has specified what it considers to be the most important factors to be considered by the Court in making a statutory will. This differs from the approach adopted in the United Kingdom, where the legislature has left it entirely to the Court to formulate the principles which should guide it in making a statutory will. Factor (a) is intended to reinforce the importance which should be attached to giving effect to the person's wishes in so far as they are ascertainable. A person lacking testamentary capacity may nonetheless have clearly indicated his or her own wishes but, where this is not the case, friends, relatives and other persons should be permitted to give evidence of the person's wishes as expressed by word or conduct. Factor (b) is intended to enable the court to refrain from making a statutory will where the person is likely to gain testamentary capacity and therefore become capable of executing a valid will for himself or herself. Factors (c) and (d) are intended to encourage the Court to consider the impact of making a statutory will on any person who would receive part of the person's estate if he or she was to die without a statutory will having been made. Factor (e) is intended to avoid duplication of proceedings caused by eligible persons applying under the Family Provision Act for provision out of the estate after a statutory will has been made. Factor (f) has regard to the interests of any person who should be provided for out of the person's estate but is not included in factors (c) to (e) inclusive. Factor (g) requires the Court to have regard to the interests of any charity, benevolent society or other organisation which, by reason of the person's affiliation or connection might expect to be provided for out of the person's estate. Factor (h) is intended to allow the Court to assess the various claims to the person's estate and make provision in light of the likely nature and size of the estate. Factor (i) allows the Court to consider any other factor consistent with the scheme of the Act, for example, any statement of preference concerning particular individuals made by a person lacking testamentary capacity. This would be consistent with allowing the person's views, as far as they are formed free of disability, to be taken into account. A further factor would be evidence that a person had deliberately refrained from making a will, which may suggest that the person intended that only his or her family would inherit any property on his or her death." 114 Two points should be made. First, the Commission adopts from In re D (J) not the five propositions which Megarry V­-C enunciated, but rather the result which his Lordship sought to achieve. It amounts to no more than this: "Look at the factual situation in which the incapacitated person is placed, then decide what, if anything, a reasonable person now in that situation would do by way of testamentary disposition. If the factual situation includes a previously expressed testamentary wish of the incapacitated person, how does that bear upon what a reasonable person would now do?" 115 The second point is that, although the Commission recommends that the proposed legislation apply to minors, the Commission does not expressly refer to what criteria are to be taken into account by the Court in a nil capacity case – one in which the incapacitated person has never had testamentary capacity. The Commission Report does not refer to the highly artificial process of reasoning which Hoffmann J was compelled to adopt in In re C – a judgment which had been delivered in April of the previous year. 116 Although the New South Wales Law Reform Commission Report was delivered in 1992, it was fourteen years before its recommendations were enacted in the Succession Act 2006 (NSW). During that time, all other States had introduced statutory will-making provisions into their succession legislation. There are some variations in the wording. In particular, the difference between the New South Wales section and the original Victorian section dealing with the testamentary intention of the incapacitated person means that one cannot follow the decisions of the Victorian Courts in that respect. 117 It will now be convenient to set out the relevant New South Wales legislation and to discuss how it should be applied in this State, having regard to the decisions of the Courts in other States. The New South Wales legislation 118 The relevant provisions are as follows: " 18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity (1) The Court may, on application by any person, make an order authorising: (a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or (b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity. (2) An order under this section may authorise: (a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or (b) the alteration of part only of the will of the person. (3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity. (5) In making an order, the Court may give any necessary related orders or directions. (6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will. 19 Information required in support of application for leave (1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18. (2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information: (a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval, (e) any evidence available to the applicant of the person's wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (g) any evidence available to the applicant of the terms of any will previously made by the person, (h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, (i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person, (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, (l) any other facts of which the applicant is aware that are relevant to the application. 20 Hearing of application for leave (1) On hearing an application for leave the Court may: (a) give leave and allow the application for leave to proceed as an application for an order under section 18, and (b) if satisfied of the matters set out in section 22, make the order. (2) Without limiting the action the Court may take in hearing an 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. 21 Hearing an application for an order In considering an application for an order under section 18, the Court: (a) may have regard to any information given to the Court in support of the application under section 19, and (b) may inform itself of any other matter in any manner it sees fit, and (c) is not bound by the rules of evidence. 22 Court must be satisfied about certain matters The Court must refuse leave to make an application for an order under section 18 unless the Court is 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 of all 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. … 25 Separate representation of person lacking testamentary capacity If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation." Procedure 119 As recommended in the New South Wales Law Reform Commission's Report, an application for a statutory will proceeds in two stages. An order under s 18 approving a statutory will cannot be made unless the applicant has first obtained leave to make the application: s 19(1). As Debelle J said in Hoffmann v Waters [2007] SASC 273, at [10], the leave application is "a process by which to screen out baseless or unmeritorious applications and, in particular, baseless claims that a person lacks testamentary capacity". See also Monger v Taylor [2000] VSC 304, at [22]; Boulton v Sanders (2004) 9 VR 495, at [11]. 120 On the hearing of an application for leave the Court may, at the same time as it grants leave, proceed to hear the application for a final order s 18: s 20(1). In order to save the parties expense and time, the Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) if it can be satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of s 19(2) and s 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: see e.g. Monger v Taylor (supra) at [24]; Re the will of Palmer [2003] VSC 21, at [20]-[21]; Hill v Hill [2001] VSC 83, at [15]-[16]. 121 Probably in most cases coming before the Court – and the present cases are examples – there is little likelihood of the relevant circumstances upon which a s 18 order is to be made changing soon after leave under s 19 is granted. However, it must be noted that upon an application for leave, 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). On the other hand, the Court can make a final order under s 18(1) only in respect of a person "who lacks testamentary capacity". In other words, in the screening process for which the leave application is designed, 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 subject person actually lacks testamentary capacity. 122 The reason for this difference in standards of ascertaining testamentary capacity can be seen in some of the cases in the United Kingdom to which I have referred. An application for a statutory will may have to be made with some urgency and before sufficient medical evidence proving incapacity can be obtained. A factual example may be found in In re Davey (supra): see paras [56], [57] above. In such a case, the screening process required by the leave application may be undertaken at once, leaving until later the gathering of further information necessary to support an application for a final order. At the leave stage, the Court will be concerned to ensure, perhaps on limited information not meeting all of the requirements of s 19(2), that the application for leave is not frivolous or vexatious. If it is so satisfied despite absence of some of the information prescribed by s 19(2), it may in exercise of the power of discretion conferred by s 19(2) dispense with the requirement to provide further information. Clearly, however, the Court has the discretion to grant a dispensation on terms, namely, that the absent information be provided at the hearing for a final order. 123 Section 19(2) provides a check list of the information which the Court will normally require before granting leave. That check list is neither exhaustive nor rigid. In some cases, particularly the nil capacity cases where the incapacitated person is still a minor, there will probably be no information available under paragraphs (e), (g), (i) and (j). The Court will not need to make a dispensing direction because the information under those headings is to be provided only if it exists. In other cases, the Court may make a dispensing direction 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, so that to require it to be provided would entail needless expense and delay. 124 For example, the circumstance justifying a statutory codicil may be that the incapacitated person has had a child for whom no provision has been made under a previous valid will. It may be obvious that no one else could possibly have a better claim to a share in the estate of the incapacitated person, to the exclusion of the child, so that the Court may dispense with the information required under s 19(h), (i), (j) and (k). The dispensing discretion will be exercised in the light of two fundamental considerations: – what is in the best interests of the incapacitated person and of those who have a proper claim to his or her testamentary estate; – what will facilitate the just, quick and cheap resolution of the real issue in the proceedings: s 56(1) Civil Procedure Act 2005 (NSW). 125 While the Court has a discretion in a leave application as to what information specified in s 19(2) it will require in the particular circumstances of the case, it has no such discretion in relation to the information required by s 22. All five categories of information specified must be addressed, although it is clear that within some of those categories what the Court will require is a matter of discretionary assessment. Proof of testamentary incapacity 126 As to the lack of testamentary capacity, the test is, obviously, that enunciated in Banks v Goodfellow: see Hoffmans v Waters (supra) at [11]; Bryant v Blake [2004] SASC 369 at [18]. However, in a leave application the threshold of proof of testamentary capacity, at the lowest, requires merely that the applicant demonstrate that there is reason to believe that the subject person is reasonably likely to lack testamentary capacity. This does not mean, of course, that applicants for leave should routinely provide the minimum information necessary to cross the threshold, when much better information as to capacity could be expected. As I have observed above, the minimum threshold is appropriate only in applications of real urgency. Absent urgency or some other compelling reason, an applicant for leave should provide the best evidence available in the circumstances as to lack of testamentary capacity. 127 The best evidence will always be that of a specialist professional, e.g. a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness rules of Court. The report should state the testing which has been carried out and should give a conclusion by express reference to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. The latter requirement is unnecessary, of course, if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties. 128 The next best evidence – which will suffice if there is insufficient time for the report of a specialist – is that of the patient's treating general practitioner. Again, the report should explicitly refer to the elements of testamentary capacity enumerated in Banks v Goodfellow, except in the kind of nil capacity case to which I have referred. 129 The least satisfactory evidence is that of lay persons who would benefit under the proposed statutory will or codicil and who endeavour to prove testamentary incapacity by giving examples of the person's erratic or demented behaviour. The Court will treat that kind of evidence, uncorroborated by expert professional evidence, with the utmost suspicion. 130 It must always be remembered that it is a serious matter for the Court to appropriate to itself the will-making power of the citizen. People who are vulnerable by reason of age, illness, temperament or attachment, though still of testamentary capacity, may be manipulated by the unscrupulous who invoke the statutory will-making power for their own benefit. The level of satisfaction that a Court must feel as to the essential requirement of permanent testamentary incapacity must have regard to the gravity of the power being exercised and to its consequences: cf. Briginshaw v Briginshaw (1938) 60 CLR 336. If no more than the minimum level of proof of testamentary incapacity is demonstrated by an applicant at the leave stage, when better proof would be expected, the application may survive s 22(a) but may founder at s 22(c). 131 If the evidence as to permanent testamentary capacity available at the second stage of the application still leaves the Court in doubt, it need not merely refuse the order: it can take matters into its own hands. 132 The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people's lives, in the best possible way. It is for this reason that s 21 provides that, in hearing an application for an order under s 18 (as distinct from an application for leave under s 20(1)(a)), the Court may inform itself of any matter, in addition to the information provided under s 19, in any manner the Court sees fit. Further, in hearing an application, the Court is not bound by the rules of evidence. 133 For example, the Court may have reservations about the impartiality of an expert medical witness, even though there is no other party to the proceedings who wishes to contest testamentary incapacity. The Court may, in such a case, insist on seeing and hearing the patient for itself. It may require a report from a Court appointed expert. Indeed, the Court is more likely to feel the need to use the investigative power expressly conferred on it by s 21(b) in a case where there is no apparent opposition to the application than in a case where the application is opposed by a party legally represented and able to adduce contradictory evidence. 134 I acknowledge that some Judges will, by training and disposition, hesitate to step outside the conventional role of the Judge as referee in adversarial litigation. However, to give the Court the power of informing itself in any manner it sees fit in order to decide an application for a statutory will imposes on the Judge a heavy responsibility; it is to do, as far as possible, what is best for those affected by the decision rather than to give a result which is dictated solely by the passive reception of whatever evidence is placed before the Court by the parties. 135 It goes without saying, however, that the powers given by s 21(b) and (c) must be exercised only when clearly necessary. Needless expense, delay and anguish may be caused to the parties by the Court's insistence on receiving further material which is not directed to issues which will decide the application one way or another. Further, the powers must be exercised judicially. If the application is contested, the matters upon which the Court requires further information and the results of the enquiry must all be exposed in Court in the presence of the parties and the parties must have the opportunity to respond by evidence and submission. Previous Australian decisions 136 The requirements of s 22(b) are difficult to apply because they cover so many different situations. I will discuss some of them but, doubtless, many more will arise for the Court's consideration. 137 Before beginning consideration of s 22(b), I must observe that the Victorian statutory will cases decided before the Victorian Act was relevantly amended in 2007 are of no assistance because the wording of the equivalent section was significantly different. The South Australian legislation has the same wording. 138 Section 26(b) of the Wills Act 1997 (Vic) originally provided that, before granting leave to bring a statutory will application, the Court had to be satisfied that "the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity". 139 First instance Judges, in applying this section, sought to derive assistance from the decisions of the English Courts in In re D (J) and In re C (a patient): see e.g. Monger v Taylor (supra); Re the Will of Palmer (supra). However, the Court of Appeal in Boulton v Sanders (supra) at [54] drew attention to the "crucial differences" between the Victorian and the UK legislation, which dictates "a cautious approach to the principles derived from the English cases". 140 I think it is fair to say that first instance Judges in Victoria were groping their way forward with the statutory will legislation introduced in the Wills Act 1997. That legislation had introduced an entirely novel concept into this country's succession law and the Courts were seeking what guidance they could get from the three or four reported UK decisions on the topic. Unfortunately, as I have discussed earlier, the UK decisions were of no help because: – they sought to retain the fundamental principles of the old lunacy cases, when those principles were not reflected in the words of the various Mental Health Acts; – they did not develop a reasoned, pragmatic approach in the application of the words of the legislation; – the words of the Victorian s 26(b), while seeking to capture the intent of the English cases, did not reproduce the words of the UK legislation which the English cases supposedly interpreted. 141 It was doubtless for these reasons that the Victorian Court of Appeal in Boulton at [54] disavowed reliance on the English cases. The Court insisted that the Victorian s 26(b) be construed and applied with regard only to the words of the section. Those words produced a new set of problems. 142 In Boulton, the incapacitated person, 'S', had made a will in which she bequeathed certain property to a long-standing friend, 'C', and after giving various legacies to family, friends and charities she gave the residue to 'C'. The will did not provide for a gift over in case 'C' predeceased 'S'. 'C' died and a few months later 'S' lost testamentary capacity so that, if matters remained thus, there would be an intestacy of the residuary estate on her death. 'B', who was not a member of the family and would not take a share on intestacy, applied for a statutory will in which she would have a legacy of $10,000, on the ground that she had cared for 'S' following the death of 'C'. 143 The trial Judge, Balmford J, dismissed the application because her Honour was not satisfied on the balance of probabilities that the proposed will "accurately reflected" 'S's likely intentions, as the section required: there was no evidence from which one could infer that the omission in the will of a gift over of residue was accidental or intentional, so that it was possible that 'S' had intended the residue to pass on intestacy if 'C' predeceased her. 'B' appealed. 144 The appeal was dismissed, the leading judgment being given by Dodds-Streeton AJA with whom Ormiston and Charles JJA agreed. Dodds-Streeton AJA placed primary emphasis on the words in s 26(b) "accurately reflect" and "likely intentions". Her Honour said at [109]-[112]: "In cases where the evidence does not permit the court to form any view of the testator's likely intentions, it is neither empowered nor required to 'do the best it can' to authorise a proposed will, even where the alternative is an intestacy which the testator probably did not intend. Under the United Kingdom legislation, regard may properly be had to many factors (including legal or non-legal obligations) from which a will may be constructed, albeit for an actual person on whom such factors or obligations are taken to impinge. As Hoffman J observed in Re C (a patient) , under the United Kingdom legislation if a disposition is consistent with the guiding principles 'it is not necessary for the court to be satisfied that the patient would definitely have chosen one way of giving effect to them rather than another' . His Lordship recognised that a provision which the patient 'might be expected to provide' allowed for, in matters of detail, 'a range of choices which would be equally valid' . Under the Victorian legislation, the legislative insistence on an accurate reflection of the likely intentions of the testator precludes the authorisation of a will which no more probably reflects likely intentions than any number of other possible wills, although it may accord with an assumed desire to avoid intestacy. While not excluding flexibility in matters of 'detail' , s 26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator's likely intentions. The question is not whether the testator would probably have preferred the proposed will to intestacy; nor whether the proposed will is one of a number of possible proposed wills, all of which might be equally likely to reflect the testator's likely intentions. If the proposed will no more probably reflects 'likely intentions' than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied. Section 26(b) does not demand certainty, but probability. However, as Mandie J recognised, the requirement of accurate reflection demands a substantial degree of precision and exactitude about the 'likely intentions' ." 145 It will be seen that in the view of the Court of Appeal the words of s 26(b) forcefully mandate a focus on the actual intention of the incapacitated person. This narrowness of focus must inevitably cause great difficulty in a nil capacity case where the incapacitated person could never have formed any testamentary intention. In such a case, the Court would either have to resort to creating a complete fiction – i.e. instead of an eleven year old totally incapacitated from the age of four months, as is 'Charles' in the present case – one would imagine an adult of at least eighteen years with arbitrarily attributed qualities of intelligence and character – or else one would have to give up the search for "accurate reflection" as meaningless or impossibly unrealistic. 146 Doubtless recognising these and other difficulties, the Victorian Parliament amended s 26(b) in 2007. Section 26(b) now requires that the Court be satisfied that: "… the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity." 147 These words clearly give the Court far more latitude in applying an objectively reasonable approach to identification of testamentary intention than did the words of the previous section. Indeed, the words of the new s 26(b) are very close in substance to the words of s 22(b) in the New South Wales Act. 148 My somewhat elaborate review of the UK decisions and the Victorian cases will show, I hope, that in interpreting and applying s 22(b) of the New South Wales Act, this Court should not attempt to seek guidance from earlier authority. In interpreting s 22(b) this Court should start 'with a clean slate'; it must interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction: see e.g. Roberts v Repatriation Commission (1992) 111 ALR 436, at 440; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, at 634-635 per Manning JA; Re Dominion Insurance Company of Australia Ltd and the Companies Act (1980) 4 ACLR 765, at 767 per Needham J. 149 I turn now to the application of s 22(b) to various types of cases which are likely to arise. The cases now for determination by the Court are amongst them. The meaning of "reasonably likely" 150 I should begin with some observations on the various meanings of "reasonably likely", because those words in s 22(b) will have to be applied in widely different types of case. 151 "Reasonably" can, of course, mean "in accordance with reason", as in the phrase "acting reasonably in all the circumstances". It can also be used to lessen the intensity of an adjective. For example, if I were asked: "Is this action necessary", the answer "it is necessary" would be stronger than "it is reasonably necessary". The second answer conveys that there is some latitude, or margin of judgment, available whereas the first answer does not. 152 In the same way, if the Court were required to find whether a certain result is "likely" for the purposes of s 22(b), it would have to make its judgment in a 'yes or no' or 'black or white' fashion. However, if the Court were asked whether the result is "reasonably likely", it does not have to be persuaded of likelihood to the same degree. It may answer 'yes' if it considers that there is a fairly good chance that the result is likely. Alternatively, it may answer 'yes' if it recognises that other reasonable people could regard the result as likely, even if the Court itself would differ. Thus "reasonably likely" can mean "a fairly good chance that it is likely" or "some reasonable people could think that it is likely" or "some reasonable people could think that there is a fairly good chance that it is likely". Such are the nuances of the English language. 153 As I have observed, I think that "reasonably likely" must be understood in one or other of its nuances in different applications of s 22(b), as I shall show. Intention in a lost capacity case 154 The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will. 155 The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking? 156 The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and (c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence. 157 If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person "if he or she had testamentary capacity"? This question may pose little difficulty if the person's testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity. 158 In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity? 159 There is another question also: is the expressed intention the product of the incapacitated person's free choice, or has some undue pressure or influence been applied? However, this question is better considered, I think, under s 22(c), to which I will come shortly. 160 Next is the lost capacity case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances, such as, the birth of a child or the death of a beneficiary under the existing will. 161 In such a case the Court may be satisfied as to what the incapacitated person is "reasonably likely" to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person's testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances. 162 For example, the will, coupled with family history, may show that it would be highly unlikely that the incapacitated person would have intended failure of a residuary bequest to create an intestacy because intestacy would benefit relatives with whom the person was not on good terms. In such a case, the Court would be satisfied that the incapacitated person would likely have made another residuary bequest; the question then is: does the proposed codicil confer the bequest on a person or charity whom or which the incapacitated person is reasonably likely to have chosen? 163 Next is the lost capacity case in which the incapacitated person has never made a will. The first question is: can the Court be satisfied that it is reasonably likely that the person would have made any will at all if testamentary capacity had not been lost? Experience shows that some people with testamentary capacity deliberately choose to die intestate, for a variety of reasons. Should the Court start from a presumption that an incapacitated person is likely to have made a will rather than die intestate? 164 It is often said that "the Court leans against an intestacy". However, this proposition must be understood in its context. As Lord Esher MR famously said In re Harrison; Turner v Hellard (1885) 30 Ch D 390, at 393-394: "There is one rule of construction, which to my mind, is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy." 165 In short, the proposition that "the Court leans against an intestacy" is a rule of construction applicable only when a testator has made a valid will and the question is: what does it mean? 166 In my opinion, in a lost capacity case in which the incapacitated person has never made a will, the Court ought not to start with a presumed intention against intestacy. The Court must be satisfied by the evidence that it is "reasonably likely" – in the sense of "a fairly good chance" – that the person would have made a will at some time or other, had not testamentary incapacity supervened. 167 For example, assume that the incapacitated person is a young man who, before suffering incapacity, held a responsible job and possessed significant assets. Assume that he has no siblings or wife and children so that his estate would go on intestacy to his parents, who are well off. Assume that he has for some years been financially supporting a friend with a severe disability. Here the Court would have some information upon which to assess reasonable likelihoods: a responsible person, too young to be thinking seriously about a will but already having voluntarily assumed financial responsibility for a person who otherwise would have no claim on him. Add to this the fact that an intestacy would confer a benefit on his parents which they do not need and would withdraw from the disabled friend, who does have a need, support previously given. It is reasonably likely – in the sense of a fairly good chance – that if one had asked that young man about his testamentary intentions before he was incapacitated he would have said that he would make a will at some time or other so as to provide at least some benefit to the disabled friend. 168 To take an opposite example: assume that the person is an elderly man of means who not only dislikes his relatives but fosters disharmony amongst them. He has had ample opportunity to make a will but, despite the blandishments of hopeful relations, he has not done so. How could the Court find, in such a case, that it is reasonably likely that the incapacitated person wished to die testate rather than leave his estate to fall where it may on intestacy? 169 The point I wish to make is that in a lost capacity case where no will has ever been made, there will generally be some evidence which, even though it may be slight, will satisfy the Court that there is a fairly good chance that the incapacitated person either intended at some stage to make a will or else intended to die intestate. In the latter case, of course, the Court will not approve a statutory will. If there is insufficient evidence for the Court to form any view one way or the other, then the applicant will have failed to discharge the burden of proof which he or she bears under s 22(b) and the application must be dismissed. 170 In summary, in a lost capacity case, the Court's concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the incapacitated person. Intention in a nil capacity case 171 A search for any degree of subjective intention is impossible in a nil capacity case, where the person has been born with mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition. Nevertheless, the statutory will-making power is available in such a case: s 18(4). 172 As, in the absence of a statutory will, the person in a nil capacity case must inevitably die intestate, I do not think that the Court starts with the meaningless question: would this particular person have chosen to make a will if he or she had attained testamentary capacity? Rather, I think 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. 173 Is that position justified by the words of s 22(b)? I think that the justification is to be found in the elastic phrase "reasonably likely". In a nil capacity case, where there cannot be any meaningful search for actual or likely subjective intention, the Court of necessity must make objective assessments of likelihood. The Court can take notice of the fact that people in our society who have assets of any worth and who have a family and other relationships usually choose to make wills rather than die intestate. In my opinion, the Court can be satisfied by reference to common experience that if the incapacitated minor had attained testamentary capacity and had assets of any significant worth, then it is reasonably likely – in the sense of a fairly good chance – that, in common with most people, he or she would have chosen to make a will. 174 The next question is: is it reasonably likely that the incapacitated minor would have made the will now proposed? In order to answer this question, Hoffmann J in In re C had to envisage a fictitious person, somehow resembling the actual patient, while, in truth, applying the Court's objective assessment of what a reasonable person would do in the circumstances. In my opinion, to perpetuate such a fiction in applying s 22(b) in a nil capacity case is neither necessary nor desirable. 175 The fiction is undesirable because legal fictions usually distort, rather than clarify, what the Court is actually doing. As was said by Crennan J (with whom Gleeson CJ, Gummow and Heydon JJ agreed) in Harriton v Stephens (2006) 226 CLR 52, at [269]: "The common law is hostile to the creation of new legal fictions and the use of legal fictions concealing unexpressed considerations of social policy has been deprecated." See also per Gummow J in Scott v Davis (2000) 204 CLR 333, at [128] and [265], and in Pyrenees Shire Council v Day (1998) 192 CLR 330, at [163]. If that approach had been taken to the development of the law of statutory wills in the United Kingdom, the fictions proposed in In re D (J) and In re C would have been discarded. In my opinion, the law of statutory wills in Australia should be developed in a way which justifies a result by a transparent process of reasoning founded upon reality, not upon contra-factual assumptions. 176 More importantly, however, the fiction is unnecessary because the words of s 22(b) can be applied sensibly and pragmatically without it. Whether a proposed will is "reasonably likely" to have been made by a person who never had, and never will have, the smallest capacity to form testamentary intentions may be answered only in the sense, discussed above: "is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?" In my opinion, in a nil capacity case, as distinct from a lost capacity case, this is the question which the words "reasonably likely" in s 22(b) require the Court to answer. The considerations involved in the question are entirely objective. Intention in a pre-empted capacity case 177 In this category the incapacitated person is still a minor but has lost testamentary capacity at an age at which he or she had formed relationships and had, or could reasonably be expected to have had, a fairly good understanding of will-making, intestacy and their consequences. An archetypical example of a "pre-empted capacity" case is that of the sixteen or seventeen year old who suffers severe and permanent brain injury in a motor vehicle accident and is subsequently awarded a large sum in damages. There is already one application for a statutory will in such a case pending in this Court and there will, I am sure, be many more. For the sake of convenient reference and because the vast majority of people in this category will be teenagers, I will refer to the incapacitated person as "the teenager". 178 It is possible that the teenager will have expressed some testamentary intention before becoming incapacitated. Ordinary experience shows, however, that that will be a rare occurrence as teenagers usually have few significant assets to dispose of and little occasion to ponder mortality and testamentary disposition. An express testamentary intention attributed to a teenager by a person seeking to benefit from a statutory will should, therefore, be scrutinised with particular care. 179 Nevertheless, as I have said, there may be the rare case in which a teenager is asserted to have expressed a testamentary intention in accordance with the proposed statutory will, or in which the teenager, though suffering from mental infirmity, is still able to make known his or her wishes. As in a lost capacity case, the Court must be satisfied, as a matter of fact, that the asserted intention is truly that of the teenager. 180 If the Court is satisfied, the next question is whether it is reasonably likely that the teenager would have expressed that intention if he or she had attained testamentary capacity. The teenager's presently asserted intention may be the product of deluded attachment or hostility; it may be the product of an immaturity that a normal person of eighteen years of age would not display. The question posed by s 22(b) is: 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? It is a question which contains both subjective and objective elements. 181 In most cases, however, the application will be made on the ground that, although the teenager has never expressed a testamentary intention, the proposed will is reasonably likely to have been one which he or she would have made. 182 In such a case, the first question, at least theoretically, is: is it reasonably likely that the minor would have made any will at all rather than die intestate? There is a critical difference here between the lost capacity case, in which a will has never been made, and the pre-empted capacity case. In the lost capacity case, the incapacitated person is an adult who has had the legal right and, usually, the opportunity to make a will but has not done so before losing capacity. The question in such a case is: was that failure deliberate? 183 However, when the incapacitated person is a minor, that question does not arise with nearly the same intensity. A minor has no right to make a will unless he or she applies to the Court under s 16 Succession Act (previously s 6A Wills, Probate and Administration Act 1898 (NSW)). Such applications have been exceedingly rare and have been founded on unusual circumstances: see e.g. Application of M (2000) 50 NSWLR 401; "Recent Developments in New South Wales in the Law Relating to Wills" Mr Justice Powell (1993) 67 ALJ 25, at 26. 184 The failure by a teenager to make a will before losing testamentary capacity needs no explanation. As in a nil capacity case – and for the reason discussed in paragraph [173] – the Court will start from the position that it is reasonably likely that a teenager with assets of any significant worth would have made a will at some time after gaining testamentary capacity rather than choosing to die intestate. 185 The second, and most substantial question is: is it reasonably likely that the teenager would have made the will which is now proposed? This question involves both subjective and objective considerations. Because at least something – possibly a great deal – will be known of the teenager's relationships and character before he or she lost capacity, the Court will be able to form some view about possible subjective intentions. But because these intentions are no more than future possibilities, the Court cannot take the search for subjective intention too far; it can be satisfied of "reasonable likelihood" of the proposed statutory will only by taking into account objective considerations also. 186 So, for example, the evidence may show that a seventeen year old boy, at the time of suffering incapacitating injury, had had a stable and loving relationship with a girlfriend for some time, although it had not developed to a point at which any claim could be made by the girl under the Property (Relationships) Act 1984 (NSW) or the Family Provision Act (now Ch 3 Succession Act). The Court may be satisfied that it is possible that the couple would, sometime in the future, have married or formed a permanent relationship. Is that sufficient ground for the Court to be satisfied that it is reasonably likely that the boy would have made provision for the girl in his will? 187 Here, the state of mind and circumstances of the boy himself are assessed in the light of the objective consideration that teenage relationships very frequently do not mature into lasting commitments, de jure or de facto. That objective consideration could well tip the scales against authorising a statutory will which makes provision for the girl. 188 In summary, in a pre-empted capacity case the Court is concerned under s 22(b) with a question which involves both subjective and objective considerations: given what is known about the teenager's relationships and history, is there a fairly good chance that a reasonable person, weighing up those circumstances, would have made the proposed statutory will? Whether the statutory will is "appropriate" 189 If 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). Section 22(c) means that the Court can grant leave if it is satisfied that, as the evidence now stands, 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. 190 Section 22(c) gives no 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 "appropriate". Section 19(2) gives an indication of some such circumstances but the generality of s 22(c) makes it clear that s 19(2) is not intended to be an exhaustive check list. 191 Some of the requirements of s 19(2) are so obvious that they need no elaboration; others require a little examination. 192 Paragraphs (e) and (g) provide the Court with the means of taking into account the incapacitated person's wishes, if known. However, as I have earlier remarked, the Court must, under s 22(c), assess objectively whether, and to what extent, it is "appropriate" to accede to those wishes. The Court must be sure that the incapacitated person's expressed wish is not irrational or the product of pressure or influence. 193 Paragraph (i) requires the Court to consider whether the proposed statutory will would accommodate a person who would have a successful claim under the family provision legislation, now Ch 3 of the Succession Act in respect of persons dying on or after 1 March 2009. 194 It would produce needless and wasteful litigation to authorise a statutory will which was bound to provoke a successful claim under the family provision legislation. In such a case, to grant leave under s 19(1) or to make a final order under s 18 would not be appropriate, within the meaning of s 22(c). The policy of the law is to quell disputes, not to create them. 195 There will inevitably be some applications for a statutory will in which there is a contest between the applicant and others seeking a provision in their favour on the basis that they would have a successful family provision claim. They would say that the statutory will should reflect a provision which the Court itself will ultimately make under Ch 3 Succession Act. 196 A complication in hearing such a putative family provision claim at the time of hearing the statutory will application is that in a family provision claim the Court's decision is founded upon circumstances as they exist after the death of the testator and as at the time of the trial. In a contested statutory will case, the incapacitated person may live for many years to come, during which time the circumstances of those now postulating a successful family provision claim may change in a way which either defeats, or increases, the claim. 197 There is no express restriction in the Succession Act on the frequency of applications for a statutory will made by the same person. However, it would be disastrous to encourage the attitude that a statutory will can be made giving expression to putative family provision claims and that applications to vary the statutory will can be made as and when changes in the circumstances of the applicant occur throughout the lifetime of the incapacitated person. Bearing in mind the hostility and ruinous expense which so often accompany family provision claims, the Court should endeavour to limit their occurrence to once only in the administration of the estate of anyone, alive or dead. 198 Accordingly, if an application for a statutory will is made in respect of an incapacitated person who clearly has not much time to live, the Court may consider it desirable to hear a contested putative family provision claim in the course of the leave application in order to decide whether the terms of the statutory will are appropriate, within the meaning of s 22(c). The Court may take the view that the circumstances of the putative claimant, and the other relevant circumstances, are not likely to change materially between the making of the statutory will and the time that a family provision claim would be heard in the normal course of events. 199 On the other hand, however, when the incapacitated person is likely to live for some time, as in many nil capacity and pre-empted capacity cases, the Court should be very slow to hear a contested family provision claim in the course of the statutory will application. The putative family provision claimant should normally be left to make his or her application for a statutory will provision when and if the relevant circumstances warranting such an application have reached a state of immutability during the life of the incapacitated person. If that does not happen, he or she should be left to pursue a family provision claim as such under Ch 3 Succession Act. 200 With this lengthy but, I hope, useful general preamble, I turn to consider the applications before the Court. The application of Fenwick (proceedings 119046 of 2008) 201 The Plaintiff seeks an order granting leave under s 19(1) and, at the same time, a final order for a statutory codicil under s 18. 202 The Plaintiff, John Fenwick, is the older brother of Robert Fenwick, who is now sixty years of age. For convenience and without intending disrespect, I will refer to the family members concerned in the application by their first names. 203 Robert made a will in July 1987. In November 1997 he suffered a severe head injury at work, remaining in hospital for some ten months. On 13 August 1998, John was appointed as Robert's financial manager by the Guardianship Tribunal and he now cares for Robert full time. 204 The medical evidence demonstrates clearly and emphatically that Robert has suffered severe and permanent cognitive impairment. His understanding and expression are extremely limited. It is manifest that he does not have any understanding of his affairs or of testamentary issues. I am satisfied by the evidence that Robert is incapable of making a will and will never regain capacity to make a will. 205 Robert's estate comprises real estate and cash with a current nett worth of a little in excess of $2M. 206 Robert's present will leaves the whole of his estate to John, who is now sixty-one. If John predeceases Robert, the will gives the whole of the estate to Robert's children. The evidence clearly shows that Robert has never married and has no children. His age and medical condition make it virtually impossible that he will ever have children. The will provides that if Robert dies without leaving children, his estate is to go to whichever of his cousins, Rae and Joan, survive him, and if both, to them equally. There is no gift over if Rae and Joan predecease Robert. John, Rae and Joan are all older than Robert and all have life-threatening medical conditions in varying degrees of severity. It is quite possible that, notwithstanding his injuries, Robert will outlive all of them and that his estate will go on intestacy. 207 I am satisfied by the production of relevant birth and death certificates that there would be only one surviving relative who could take Robert's estate on intestacy, namely an uncle, Thomas, who is now eighty-four years of age. It is quite possible that Thomas will also predecease Robert, in which case the whole of Robert's estate will vest in the Crown as bona vacantia. 208 It is to prevent such an event that John now seeks an order authorising a codicil which provides that if he, Rae and Joan predecease Robert, an authorised trustee company will be appointed executor of the will and there will be a gift over in favour of the children of Rae and Joan. The codicil has the effect of precluding Thomas from taking on intestacy. Thomas has been given due notice of this application but does not appear. 209 I am satisfied that the only person who would be entitled to take on intestacy does not wish to contest this application. 210 As I haven noted, Robert has never married and has no children. He was not a member of any household other than that of his parents. His relationships have mostly been within the extended family. His most frequent family associations before his accident were with his cousins, Joan and Rae, and their children. Contact with other family members was sporadic. Robert had no association or relationship with any member of his extended family which could have supported an application for provision out of Robert's estate under Ch 3 of the Act. 211 Robert had no regular association with any charitable organisation and since his accident he has not received support from any charitable institution. 212 I come now to the mandatory requirements of s 22. 213 As I have noted, the evidence abundantly satisfies me that Robert is now, and will continue to be, incapable of making a will. 214 This is a lost capacity case in which Robert is unable to indicate whether, if the gifts in his present will fail, he would prefer his estate to pass on intestacy. However, Robert's estate is substantial and it is clear from the terms of the present will that he wished to take steps which would avoid an intestacy, if he could. There are gifts over if John predeceases him and if Robert has no children. In those circumstances, in my opinion, it is reasonably likely – in the sense that there is a fairly good chance – that had Robert been able to give thought as to what should happen if Joan and Rae predeceased him, he would have selected further beneficiaries rather than leave his estate to be distributed on intestacy. 215 Is it reasonably likely, in the sense of a fairly good chance, that Robert would have selected the children of Joan and Rae as the ultimate "fall back" beneficiaries? I am satisfied that it is reasonably likely that, if he now had testamentary capacity, Robert would have made such a selection. Joan and Rae are the present ultimate beneficiaries of his will and their families are the members of Robert's extended family with whom he has had most frequent contact. There is no other person who could reasonably assert any claim to Robert's testamentary benevolence. I am satisfied that, if Robert had testamentary capacity, it is reasonably likely that, in the circumstances as they now are, he would have made the proposed codicil. 216 There is no doubt that John, as Robert's financial manager and sole carer, is an appropriate person to make this application. 217 There are no contentious or complicating factors in the application which raise any doubt that it is appropriate to make the final order sought. 218 The circumstances supporting John's application for leave will not change in the foreseeable future so that it is appropriate to grant leave to make this application and to proceed immediately to make the final order under s 18 approving the proposed codicil. Orders in proceedings 119046/08 219 The orders of the Court are as follows: (1) Grant leave to the Plaintiff to make application, on behalf of Robert James Fenwick, for an order authorising a codicil to the will dated 9 July 1989 of Robert James Fenwick in the terms set out in Schedule A to the Summons. (2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act 2006 (NSW). (3) Approve the terms of the codicil as set out in Schedule A to the Summons. (4) Authorise the Registrar, pursuant to s 23(1) of the Succession Act , to sign and seal with the seal of the Court the said codicil. (5) Order that the costs of these proceedings be paid out of the estate of Robert James Fenwick on the solicitor/client basis. Re 'Charles' (proceedings 5958 of 2008) 220 Because these proceedings concern a minor, pseudonyms are used to protect the identity of the parties. 221 Charles was born in July 1997. The Defendants are his parents. 222 In November 1997, Charles, then 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. 223 In 1998 the Children's Court ordered that Charles be removed from the parents' care. In June 1998, all aspects of Charles' parental care were allocated to the Minister for Community Services pursuant to a care order made under the then s 72 of the Children (Care and Protection) Act 1987 (NSW). 224 In November 2000, the Victim Compensation Tribunal awarded Charles a substantial sum as compensation in respect of the injuries which he had suffered. The money is 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. 225 The medical evidence shows that Charles has been diagnosed with microcephaly, severe developmental delay, spastic diplegia, epilepsy, tracheostomy, gastrostomy and scoliosis. He is legally blind. His intellectual disability is severe. He is virtually non-verbal. His disabilities are permanent. It is clear that Charles will never have testamentary capacity. 226 Charles has been in foster care since December 1999. His present carer has had full time care of Charles since June 2000, when her mother, Charles' previous carer, became ill. 227 The Minister now seeks an order granting leave under s 19(1) to make an application and, at the same time, seeks a final order under s 18 for a statutory will for Charles. 228 If Charles were to die intestate, his estate would go to his parents in equal shares under s 61B(5) Probate and Administration Act 1898 (NSW). 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 proposes 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. 229 The parents have never been charged with causing Charles' injuries. However, the surrounding circumstances undeniably raise a suspicion against them. 230 Prior to his admission to hospital, Charles had been brought to his local general practitioner on three occasions, each time presenting with unexplained bruising to the face, forehead and upper arm. The general practitioner had noted that the mother was stressed by the baby's feeding difficulties. A notification to DOCS had been given. 231 A short time after Charles' emergency admission to the New Children's Hospital, Westmead, the Consultant Paediatrician and Staff Specialist in the Child Protection Unit of the hospital expressed the view that Charles: "… sustained the head injury some 24 to 36 hours before his presentation to hospital when he was in the care of one or both of his parents. I am also of the opinion that his parents recognised that he was having seizures and excessively delayed his presentation to hospital which has compounded his brain injury." 232 The parents' behaviour when Charles was brought to hospital was noted as guarded and unemotional. 233 An assessment of the parents by a senior clinical psychologist, made with the consent of the parents in early 1998, reported that: "… they tightly controlled the kind of information I had access to, and some concerns about the completeness and reliability of what they told me remain. … it is possible that much of what I have been told [by the parents] is strongly biased." 234 Later the psychologist noted that the results of tests completed by the parents at home suggest "a deliberate attempt on the part of [both of them] to create a markedly and unrealistically positive impression of themselves". 235 The psychologist observed: "Perhaps the most worrying aspect of my assessment with the family is the lack of any good account of how [Charles] obtained his injuries. It would seem that the family are not prepared to accept the account as given by the Department, but also, either for legal reasons, or for psychological reasons, are unable to explain the injuries. Indeed, the extent and time span of the injuries was not raised by them at all. When the time span of the injuries was specifically raised with them, the family simply could not respond to them (nor would it appear they were prepared to believe the evidence)." 236 The Crown Solicitor wrote to the parents before commencing these proceedings, advising that this application would be made, setting out the terms of the proposed statutory will, noting that they were entitled to be represented at the hearing, and suggesting that they obtain legal advice. The parents responded in a jointly signed letter, saying that they have no objection to the proposed statutory will and do not wish "at this time" to be represented at the hearing. 237 On the filing of the Summons, the Crown Solicitor served on the parents the Summons and all affidavits and exhibits upon which this application is founded. The Crown Solicitor's letter advised of the return date and reiterated that the parents were entitled to be represented. 238 The parents responded in a jointly signed letter stating that: – they do not "agree with where these funds [i.e. the compensation award] came from and why they were awarded to [Charles] as we have always maintained our innocence" ; – they have no objection to the proposed statutory will; – they do not wish to be represented during the proceedings and request that the Crown Solicitor inform the Court accordingly 239 The Crown Solicitor again wrote to the parents notifying them of the date upon which this application had been fixed for hearing and providing contact details if the parents had any queries. 240 When the application came on for hearing before me, the parents were called but there was no appearance. I am satisfied that the parents have been given full and proper notice of this application and of the evidence to be relied upon in support of it. I am satisfied that they have no objection to the proposed statutory will and that they do not wish to be heard. I proceed on that basis. 241 All of the information required by s 19(2) has been provided or its absence explained. 242 I turn now to the mandated requirements of s 22. 243 As I have recounted, I am satisfied that Charles has never had, and never will have, testamentary capacity. 244 This is a nil capacity case. The Crown Solicitor has, following In re C and the Australian cases which have adopted it, adduced evidence in an attempt to show what Charles' likely intentions would have been if he had grown up to be "a normal decent person acting accordance with contemporaneous standards of morality". 245 For the reasons which I have discussed in paragraphs [174] to [176], I decline to perpetuate this fictitious test. I decline to pretend that an eleven year old child whose testamentary intentions are, and will always remain, a complete blank is a normal adult of at least eighteen years of age who has some concept of community standards of decency and fairness and that I am divining what his testamentary intentions are likely to be. For the reasons I have given, I prefer to adopt the entirely objective approach to the questions posed by s 22(b). 246 Charles' estate now has significant assets. If he lives for some time, the assets will probably grow by the addition of interest. If he dies intestate, the estate will go to the parents. For the reasons discussed in paragraphs [174] and [176] above, I pose the 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? 247 As I have noted, the parents have not been convicted of causing Charles' injuries. In the criminal law, they are presumed innocent. But testators do not make their decisions as if they were jurors in a criminal trial; they decide according to the standards by which we are all accustomed to make decisions in ordinary, everyday life. This is the standard by which the Court is to decide what is "reasonably likely" for the purposes of s 22(b) in a case such as this. 248 The evidence to which I have referred raises a suspicion that the parents caused Charles' injuries. Further, they have been provided by the Crown Solicitor with the evidence to which I have referred in this judgment. They have chosen not to appear, even if only to reject the clear inference of guilt upon which the Minister's application is founded. 249 On the other hand, I note that the evidence tendered by the Minister very properly includes material which shows that the parents have for some time visited Charles regularly, every two months or so. During the visits, they are highly attentive to Charles and demonstrate loving affection. I do not wish to suggest that the picture of the parents presented by the evidence as a whole is one of cruelty and neglect. How Charles suffered his injuries will probably remain a mystery. The parents may have chosen not to oppose the Minister's application for a statutory will and not to appear because it would have been too painful for them to relive the tragedy. 250 I do not need to found my decision on whether it is reasonably likely that the parents, in fact, caused Charles' injuries. All I need to decide – and do decide – consistently with the meaning of "reasonably likely" as discussed in paragraph [152], is that there is a fairly good chance that a reasonable person, faced with such evidence as there is as to the cause of Charles' injuries, would decide not to permit Charles' estate to pass to the parents on intestacy. 251 The next question is: is there a fairly good chance that a reasonable person, faced with Charles' circumstances, would make a will in favour of Charles' sister, with gifts over to the charities? 252 The closest person to Charles, apart from his parents, is his sister. His sister, who lives with the parents, visits him regularly, about every two months and it appears that he enjoys these visits. Charles has no family member beside his parents and his sister who could have a claim on his testamentary bounty. 253 There is a carer who has devoted herself full time to looking after Charles for ten years. As the evidence shows, Charles' needs are extremely high. If anyone has a claim on Charles' testamentary bounty, it is she. A reasonable person would unquestionably recognise that claim. 254 However, the carer has expressly disavowed any wish to share in Charles' estate. I suspect that she does so because she wants to make it clear that her devotion to Charles has nothing to do with the expectation of financial reward. She is to be admired for her generosity and devotion. But for her express disavowal, I would have required some provision to be made for her in Charles' statutory will. 255 As matters stand, however, I am satisfied 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. 256 If Charles' sister predeceases him, there is no suggestion that any other person who might take on intestacy, if his parents are excluded, has any claim on Charles' estate which could outweigh those of the two charities. They are both committed to caring for children suffering from the disabilities which Charles has. Both have been actively involved in Charles' care. I conclude that there is a fairly good chance that a reasonable person, faced with Charles' circumstances, would choose to provide in his will for a gift over to those charities. 257 There is no doubt that the Minister is an appropriate person to make this application. 258 There is no opposition to the statutory will proposed for Charles. There is no person other than the sister, the parents and the carer who could possibly make a family provision claim on Charles' estate. In any event, it would be premature to take such a putative claim into consideration in a case such as this, for the reasons discussed in paragraph [199]. I am satisfied that it is appropriate for an order under s 18 to be made. 259 I am satisfied that all persons with a legitimate interest in the application, as described in s 22(e), have been given the opportunity to appear and be heard. 260 The circumstances supporting the Minister's application for leave will not change in the foreseeable future so that it is appropriate to grant leave to make the application and to proceed immediately to make the final order under s 18 approving the proposed statutory will. Orders in proceedings 5958/08 261 (1) Grant leave to the Plaintiff to make application on behalf of Charles for an order authorising a will to be made for Charles in the terms set out in Annexure A to the Summons. (2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act . (3) Approve the terms of the will set out in Annexure A to the Summons. (4) Authorise the Registrar, pursuant to s 23(1) of the Succession Act , to sign and seal with the seal of the Court the said will. (5) Order that the costs of these proceedings be paid out of the estate of Charles on the solicitor/client basis. Observations on practice and procedure 262 The applications in Re Fenwick and Re Charles have been straightforward and unopposed. The evidence has been so clear and convincing as to all matter upon which the Court must be satisfied under s 19 and s 22 of the Succession Act that there was no need for the Court to see and hear any witness. Counsel for the applicants provided precise and well directed written submissions. There are likely to be many such applications in the future and it is desirable that they should be dealt with by the Court as expeditiously as possible and with as little expense to the parties as possible. 263 There is no need for straightforward, unopposed cases such as Re Fenwick and Re Charles to be heard in open Court and for Counsel to appear to make submissions. Such applications can be dealt with on the papers by a Judge in Chambers, pursuant to s 71(d) or s 71(f) Civil Procedure Act. Many applications for orders under the Protected Estates Act 1983 (NSW) and the Adoption Act 2000 (NSW) are dealt with in this way. 264 If an application is, or may be, opposed it should be listed and heard in open Court in the usual way. Likewise, if a Judge dealing with the matter in Chambers has reservations about the quality of the evidence adduced, the matter can be listed in Court so that the Judge can see and hear the witnesses whose affidavit evidence is unsatisfactory. However, if the Judge merely has a query about a particular aspect of the information provided, the query may be addressed by a requisition from the Registrar. 265 As with decisions made in Chambers in uncontested applications under the Protected Estates Act and the Adoption Act, there is no need for publication of reasons for a decision made in Chambers in straightforward, unopposed applications for a statutory will. Many of such applications will involve minors or mental health issues or matters of concern only to the immediate family members. There is no public interest in publishing reasons for judgment in such cases. Further, the dispensation of the requirement to give reasons in such applications will permit them to be dealt with far more quickly than otherwise. Of course, when an application is contested and heard in open Court, reasons for the decision will be required in the normal way. 266 When enough statutory will cases have come before the Court to provide a useful basis for evaluation of the procedure, a Practice Note will be published for the guidance of the profession. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.