Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 Hearing dates: 21 July 2014 Decision date: 08 August 2014 Jurisdiction: Equity Division - Protective List Before: Lindsay J Decision: Order made under the Succession Act 2006 NSW, s 18 authorising a Will to be made for a minor lacking testamentary capacity Catchwords: SUCCESSION Wills, Probate and Administration - Statutory Will - Minor Nil Capacity Case - Statutory powers of Court informed by protective jurisdiction - Consideration of benefit to, and interests of, incapacitated minor - Operation in context of statutory criteria. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 NSW, ss 79, 81 Evidence Act 1995 NSW, ss 91-92) Family Provision Act 1982 NSW or Forfeiture Act 1995 NSW Succession Act 2006 NSW, ss 3, 16(1), 16(4); 18-26; 128, s 60(2)(m) Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW s 3(2) Victims Support and Rehabilitation Act 1996 NSW Cases Cited: AB v CB [2009] NSWSC 680 at [5]-[6] Application by Peter Leslie Kelso [2010] NSWSC 357 Banks v Goodfellow (1870) LR 5 QB 549 at 565 Crawley, Re the Estate of [2010] NSWSC 618 Griffin v Union Trustee Co of Australia Limited (1947) 48 (NSW) 360 at 363; 65 WN (NSW) 5 at 7 In the Estate of Crippen [1911] P108 at 114-115 Pilbara Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379 at 401 [42] Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557 at 564-565 Re Eve (1986) 31 DLR (4th) 1 at 13 et seq; [1986] 2 RCS 388 at 407 Re ES and the Mental Health Act, 1958 (1984) 3 NSWLR 341 at 343-344 Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 222 at 60 [193] - 61 [199] Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218 at 258-259 Sultana, Application of [2010] NSWSC 915 Troja v Troja (1994) 33 NSWLR 269 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 493 at 505 Texts Cited: HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924) at pp 380-381 Category: Principal judgment Parties: Secretary, Department of Family & Community Services (Plaintiff) K, mother of the child C (First Defendant) B, putative father of the child (Second Defendant) Representation: Counsel: VA Hartstein (Plaintiff) First Defendant in person No appearance for Second Defendant Solicitors: IV Knight, Crown Solicitor (Plaintiff) First Defendant, self represented Second Defendant, no appearance File Number(s): 2014/00208512 Judgment INTRODUCTION 1This judgment provides a formal statement of reasons for an order made on 21 July 2014, on an urgent basis, under s 18 of the Succession Act 2006 NSW that a Will be made on behalf of a 12 year old girl, lacking testamentary capacity, on the brink of death. 2The order was made on the application of the Secretary, Department of Family & Community Services, as plaintiff. 3Joined in the proceedings as defendants were the mother ("K") of the child ("C") and the man ("B") named - he said, incorrectly - as the father of the child in her birth certificate. 4The mother appeared before the Court in qualified opposition to the Department's application. 5She had no opposition to a statutory will being made on behalf of her daughter. Nor did she oppose authorisation of a will providing for 50% of the child's estate (estimated at no more than about $50,000) to pass to the child's foster parents. 6She did, however, oppose the making of a will that would exclude her from participation in her daughter's estate notwithstanding her prospective entitlement (under the Succession Act, s 128) to at least one half, and possibly to the whole, of the estate should the child die intestate. 7The putative father of the child disclaimed any interest in the proceedings, or the outcome of the proceedings, in which he declined to participate. He had had nothing to do with the mother or child for 12 years. He had no wish to be involved with them. THE FACTUAL MATRIX 8The child was born in 2001. At the time of the hearing of the Department's application, she was aged nearly 13 years. She was born with a severe disability. 9In discussions with the Department, the mother confirmed that B was not the father of the child. She professed not to know the identity of the father. There was no evidence available, and apparently no prospect of any evidence becoming available, to enable the father to be identified. 10The mother had a long history of drug abuse. 11She claimed, at the time of hearing, to be "clean" of drugs, and to be engaged to be married later this year. 12The latter proposition may be accepted as true. Her fiancé attended Court with her on the final hearing of the proceedings. 13The former proposition may, or may not, be true. Time and available resources did not permit corroborative inquiries to be made. The Department could be forgiven for scepticism. Hope had proven a poor match for experience in the past. 14The child was without an established, natural family structure. 15Her mother had a poor record of maternal care. From the perspective of the Department, K had been, at best, a neglectful parent, at worst, an abusive one. 16This judgment provides no occasion for debate about tension between nurture and nature. Nevertheless, in fairness to K it should be recorded that, for whatever reason and wherever (if anywhere) fault may have resided, she had had a hard life. She claimed to have suffered childhood abuse herself. She had given birth to two severely disabled children, one of whom had died and the other of whom was near death. Chronic depression had been her lot. She was the recipient of a disability pension. 17C had a younger brother, but he died in 2007, before his second birthday, from an illness associated with the same disability suffered by C. 18K was estranged from her parents. They had had no known contact with C since 2009. 19These proceedings fell to be determined on the basis that, so far as was known, the mother was the only member of the child's natural family with a continuing (albeit tenuous) relationship with her. 202009 saw a turn for the worst in an already tragic young life. At that time, as a result of her congenital disability C could not speak. She had epilepsy, poor head and neck control and low tone in her trunk generally. She was completely dependent on carers for all activities of daily living. 21On 12 August 2009, at a time when C had been (temporarily) left in the care of the mother's then de facto partner, she was the victim of an assault which occasioned head injuries, necessitating life-saving surgery to remove a clot from her brain. As a result of the surgery, she was left with no bony covering over the left side of her brain, but a requirement to wear a rigid protective orthotic to cover the gap when awake. Her medical vulnerability, already profound, became more so. 22On 3 December 2009 K's partner was charged with assault occasioning grievous bodily harm. He was convicted on 23 September 2011. In these proceedings, the conviction could be taken as evidence of the fact of the assault. 23On an application for an order under s 18 of the Succession Act, the Court may inform itself in any manner it sees fit, and it is not bound by the rules of evidence: s 21. To the extent that the Court's statutory jurisdiction may be informed by its general, protective jurisdiction, the procedure upon an exercise of parens patriae jurisdiction is of a similar character. The Court is not bound by strict rules of evidence but has a discretion to act on material which is rationally probative, even though excluded by such rules, provided that in all the circumstances it is proper to act on that material, and that it may be acted upon fairly as regards the parties before the Court: Roberts v Balancio (1987) 8 NSWLR 436. 24Although evidence of a finding of fact in earlier proceedings may not, in ordinary proceedings, be admissible as evidence of the fact (Evidence Act 1995 NSW, ss 91-92), in the circumstances of these proceedings evidence of his conviction could be taken as evidence that K's partner did in fact assault C: cf, In the Estate of Crippen [1911] P108 at 114-115. More particularly, in the context of the parties before the Court, K accepted that he had done so, and that he had done so at a time when she had left C in his care. 25On 19 August 2009, C was taken into the care of the Department on the ground she was at risk of serious harm in her mother's care. On 3 December 2009, the Children's Court made orders (under ss 79 and 81 of the Children and Young Persons (Care and Protection) Act 1998 NSW) placing C under the sole parental responsibility of the Minister for Family and Community Services (then called the Minister for Community Services) until she might attain the age of 18 years. 26C was not discharged from hospital, after the assault, until January 2010. 27She then encountered a silver lining in the darkest of clouds. She was placed with foster parents in whose care she had since remained. They accepted responsibility for meeting all her daily needs, including education and health needs. 28Despite their devoted care and attention, C's health declined. It is not necessary, here, to document that decline. 29During the course of an expedited hearing, the Court was informed by counsel for the Department that that very day C had taken a turn at school, heightening a perceived need for expedition in the conduct of the proceedings. 30K did not dispute the fact of C's precarious health or the need for expedition. That, despite her limited contact with C over recent years. 31After the Children's Court made its final orders on 3 December 2009, K had supervised access with C once a week for two hours on each occasion. On 15 December 2011 she advised the Department that she no longer wished to attend contact visits as arranged by the Department. 32On the hearing of these proceedings she advised the Court that she had discontinued contact with C because she had found contact visits traumatic and she had believed them to cause distress to C. 33On 9 September 2013 K had a contact visit with C initiated, earlier that month, by the Department. 34The evidence of the Department was that that visit was an emotional and positive experience for both mother and daughter. 35Whether there would be an opportunity for mother and daughter to have further contact, in the circumstances prevailing at the time of the hearing, was a topic at that time under consideration by the Department, K and C's foster parents, if not also C herself. 36C's welfare had been the subject of assiduous care by agencies of the State, including not only the Department but also staff of two Children's Hospitals. 37The Department's concern for C's material welfare had not been limited to entrusting her care to responsible to foster parents and supervising that care. 38In or about February 2010, consequentially upon the assault of the previous year, the Department made an application on behalf of C that she receive compensation under the Victims Support and Rehabilitation Act 1996 NSW. 39By a determination made under that Act on 11 August 2011, C was awarded the maximum level of compensation available, a payment of $50,000, presently held on trust for her (pending attainment of the age of majority) by the NSW Trustee and Guardian. 40By a letter dated 7 March 2014 addressed to the Department, the NSW Trustee and Guardian recorded that the then current balance in C's trust account was $50,089.65. 41The evidence was that C had no other assets of consequence. 42It was the availability of C's "Victim's Compensation" trust fund that gave rise to the application that a statutory will be made for her. 43The Departmental officer whose evidence grounded the Department's application expressed opinions to the following effect in support of the application: (a)It was appropriate, given her circumstances, for C's estate to be divided, on her death, between her foster parents and the two children's hospitals that had cared for her - with 50% for the foster parents and 25% for each of the two hospitals. (b)It was not appropriate for C's estate to pass to K because of: (i)the child protection concerns held by the Department in connection with C prior to her admission to hospital in August 2009; (ii)the nature and extent of the injuries sustained by C when she was assaulted by K's then partner; and (iii)K's little contact with C in the previous two years. 44The Department did not suggest that K was complicit in her former partner's assault of C. It said, however, that she was guilty of negligence in leaving C in his unsupervised care at a time when they were both under the influence of drugs. 45K, for her part, protested that, at the time of her former partner's assault of C, she had left C with him only so that she could go to a shop to buy nappies for C. 46The circumstances attending the hearing of the Department's application for a statutory will did not lend themselves to an independent investigation of the culpability, or otherwise, of K in the events surrounding C's assault. 47Nor did they lend themselves to an independent investigation of material placed before the Court by the Department relating to K's alleged, earlier history as a neglectful, and possibly abusive, parent. 48For the purpose of these proceedings, I acted upon an assumption that K had such a history. The fact that the Children's Court placed C in the care of the State could, responsibly, be taken as confirmation of that much, at least. 49The question then became, what, if anything, should be done in disposition of the Department's application for a statutory will on behalf of C. 50Having reviewed the evidence that was earlier before a duty judge on a preliminary application for leave under s 19 of the Succession Act, and the draft Will that was the subject of both the Department's application and his Honour's grant of leave (on 15 July 2014), I prepared for consideration of the Department and K an alternative form of draft Will. It provided for C's estate to be divided equally between her foster parents on the one hand and, on the other hand, her mother. 51A draft was prepared in that form because: (a)on my preliminary review of the evidence, I observed that a Will in those terms would be acceptable to K; and (b)subject to hearing competing arguments, I had reservations about the Court making a statutory will, on the application of a State authority, conferring a benefit on State institutions, to the exclusion of C's closest family member, without the approval of any member of family. 52With the consent, and indeed at the invitation, of counsel for the Department, on the hearing of the Department's application under s 18 of the Succession Act I formally read all the evidence that had been before the duty judge on the Department's s 19 application and considered afresh the criteria required to be considered on a s 19 application including, in particular, those for which s 22 of the Succession Act provides. 53Upon reading the evidence, and hearing from both counsel for the Department and (in person) the mother, I was satisfied that leave to apply for a statutory will (in the alternative form, making provision for C's foster parents and her mother in equal shares) should be granted, and that an order authorising the making of a will in those terms should be made. STATEMENTS OF PRINCIPLE Text, then Context : The Court's Statutory Will-Making Powers 54The jurisdiction exercised by the Court in authorising a will to be made on behalf of a child lacking testamentary capacity is statutory. An exercise of that jurisdiction must begin, and end, with the text of the legislation in mind: the Succession Act 2006, Part 2.2, Division 2, ss 18-16. The Text of the Court's Statutory Powers 55Section 18(4) of the Succession Act specifically contemplates an application being made for an order, under s 18(1), authorising a will to be made on behalf of a person who is both a minor and lacking in testamentary capacity. 56Section 16 of the Act (in Division 1 of Part 2.2) specifically empowers the Court to make an order authorising a minor to make a will. However, its field of operation does not extend to a minor lacking testamentary capacity. Section 16(4) provides that, before making an order under s 16(1) authorising a will to be made, the Court must be satisfied: (a) that the minor understands the nature and effect of the proposed will and the extent of the property disposed of by it; (b) that the proposed will accurately reflects the intentions of the minor; and (c) that it is reasonable in all the circumstances that the order should be made. 57The contrasting field of operation of Part 2.2 Division 2 (ss 18-26) is highlighted by s 22, which provides as follows (with emphasis added): "Court must be satisfied about certain matters 22. The Court must [on an application for leave under s 19] refuse leave to make an application for an order under s 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." Context: The Court's Protective Jurisdiction informs its Statutory Powers 58Upon its proper construction, the legislation conferring the Court's jurisdiction to authorise a will to be made on behalf of a minor lacking testamentary capacity is informed by the protective jurisdiction exercised by the Court over the person on whose behalf a will is sought to be made: Cf, AB v CB [2009] NSWSC 680 at [5]-[6]. 59The historical foundations of the Court's jurisdiction over children and its jurisdiction over the mentally incompetent are different, but the principles governing both heads of jurisdiction have been assimilated in modern law: Re Eve (1986) 31 DLR (4th) 1 at 13 et seq; [1986] 2 RCS 388 at 407 et seq, approved in Secretary, Department of Health and Community Services v JWB and SMB ("Marion's Case") (1992) 175 CLR 218 at 258-259. 60The Court's jurisdiction is purposive; the purpose being, at its highest level of abstraction, protection of a person (such as, in the present proceedings, C) in need of protection. 61So grounded, the jurisdiction is broad in scope and flexible in nature. Its guiding principle is that whatever is done, or not done, for or on behalf of a person in need of protection must be for the benefit, and in the interests, of that person. 62On an application for a statutory will, there is ample scope for that guiding principle to inform the Court's decision making. 63This may be seen from two perspectives: one, that of the Succession Act; the other, that of the protective jurisdiction. 64Even though ss 19(2) and 22 contain lists which provide guidance for decision-making upon an application for leave to apply for a statutory will (s 19(1)) and upon an application for a statutory will (s 18), the criteria laid down by the Act are expressed at such a level of generality that the broad, discretionary value judgments required to be made by the Court must take their colour from the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 493 at 505; Pilbara Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379 at 401 [42]. 65The subject matter of the statutory will-making power is the estate of an incapacitated person. The scope and purpose of the legislation are directed towards the same end as the Court's protective jurisdiction. 66As Palmer J wrote in AB v CB [2009] NSWSC 680 at [5]: "The statutory will making jurisdiction conferred on the Court by chapter 2, Pt 2.2, Div 2 of the Succession Act 2006 NSW is very much of the same character as the protective, or paternal, jurisdiction which the Courts of Chancery and the Equity Division of this Court have always administered in relation to those in need of special protection, such as children not within the jurisdiction of the Family Court and persons who are mentally infirm or incapacitated: see the history of the statutory will making provisions referred to in Re Fenwick (2009) 76 NSWLR 22. ...[The] Judge who is administering the protective, or paternal, jurisdiction is not deciding a contested question in adversarial litigation. The Judge's position is as administrator: the Court's decision is not as to which of two contestants is to win the day but, rather, what is in the best interests of the person whose affairs are in the charge of the Court, either because he or she is a minor or because he or she is incapacitated and needs the Court's protection. ..." 67The protective jurisdiction of the Court extends to authorisation of property of an incapable person being settled on terms conferring a benefit on the person's family or carers: Griffin v Union Trustee Co of Australia Limited (1947) 48 (NSW) 360 at 363; 65 WN (NSW) 5 at 7; Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557 at 564-565; Re ES and the Mental Health Act, 1958 (1984) 3 NSWLR 341 at 343-344. 68An illustration of the width of the protective jurisdiction in dealing with the claims of family on the estate of a protected person can be taken from HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924) at pp 380-381: "Wide meaning of Lunatics Benefits The Lunacy jurisdiction [the name formerly given to what is now more generally referred to as the protective jurisdiction] is parental and protective. It exists for the benefit of the lunatic [now, more generally described as a protected person] but it takes a large and liberal view of what that benefit is, and will do on behalf of a lunatic not only what may directly benefit him, but what, if he were sane, he would as a rightminded and honourable man desire to do. ... A good instance of the wide view taken by the Judges of the lunatic's benefit is to be found in [In Re Tayleur (1871) LR 6 Ch App 416], where the committee [ie, a protected estate manager] was authorised to pay out of the lunatic's estate the costs of proceedings to perpetuate testimony as to the validity of two wills made by the lunatic. These proceedings could not be of any pecuniary benefit to the lunatic, though they might benefit his children or some of them. Again, where there was a question whether one of the lunatic's children was legitimate or not, a settlement of some of the lunatic's property on his children was directed to be made, in order that the legitimate children might test the question of legitimacy, and the expense of the settlement and of an action to perpetuate testimony on the question of the legitimacy was authorised to be paid out of the lunatic's estate. [In Re Stoer (1884) 9 PD 120.] In another case, where a person had settled all his property on himself and his children to the exclusion of one son, and was afterwards found lunatic by inquisition, and there was evidence to show that he was of unsound mind at the date of the settlement, the excluded son was allowed to commence proceedings, as next friend of the lunatic, to test the validity of the settlement without giving security for costs. [In Re Gordon (a lunatic) (1875) LR 10 Ch App 192.]" 69By virtue of the Succession Act, the Court's powers now extend, within statutory limits, to authorising a will to be made on behalf of an incapacitated person. 70The text of the Succession Act confers on the Court broad discretions. 71Ultimately, subject to constraints not presently material, s 18 provides that the Court "may" authorise a will to be made in terms "approved" by the Court. In this context, the word "may", used to confer a power on the Court, indicates that the power may be exercised or not, at discretion: Interpretation Act 1987 NSW s 9(1). 72Any person may apply for a statutory will to be made, but the leave of the Court to make an application for an order under s 18 is required (s 19), and on an application for a grant of leave, the Court must be satisfied, inter alia, that the applicant for leave is an "appropriate" person to make the application (ss 20(1)(b) and 22(d)). The criteria for a grant of leave also include a requirement that the Court be satisfied that it is or may be "appropriate" for an order granting leave to be made: ss 20(1)(b) and 22(c). 73The information required, by s 19(2) to be placed before the Court on an application for leave is designed to allow the Court to be placed in the position to make broad evaluative judgements about the personal, and family, circumstances of the person for whom a statutory will is sought. 74One of the factors that needs to be taken into account is the likelihood of an application being made for family provision relief (under chapter 3 of the Succession Act) in respect of the property of the prospective testator. In considering whether a statutory will is "appropriate" the Court may decide, for example, to leave competing claimants to such, if any, rights they might have on an application for family provision relief: Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 222 at 60 [193] - 61 [199]. Commentary on the Court's Statutory Powers 75In the leading case on statutory wills (Re Fenwick (2009) 76 NSWLR 22), Palmer J distinguished three different types of case upon consideration of the criterion for which s 22(b) provides. The first is a "lost capacity case"; where an incapacitated person has once had, but has now lost, testamentary capacity: [154] - [170]. The second is a "nil capacity case"; where the incapacitated person has never had testamentary capacity [171]-[176]. The third is a "pre-empted capacity case"; where the incapacitated person is still a minor, but has lost testamentary capacity at an age at which he or she may have had a fairly good understanding of will making, intestacy and their consequences: [177]-[188]. 76These categories provide useful insights into the operation of the Court's will-making power, but they should not be taken as a substitute for the text of the legislation itself. Nor should they be applied without regard to the protective jurisdiction that informs decision-making under the legislation. 77The present proceedings relate to a "nil capacity" case. 78In such a case the guidance available in Re Fenwick includes the following observations at 57 [170] - 58 [176]: "170. ... 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) of the Succession Act. 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 Re C (a patient) [1991] 3 All ER 866 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 J and Heydon J agreed) in Harriton v Stephens (2006) 226 CLR 52 at 132 [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." (Citations omitted) See 58 NSWLR [(2009) also per Gummow J in Scott v Davis (2000) 204 CLR 333 at 375 [128] and 421 [265], and in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 387 [163]. If that approach had been taken to the development of the law of statutory wills in the United Kingdom, the fictions proposed in Re D (J) [1982] 1 Ch 237 and 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) of the Succession Act 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." 79Palmer J's application of this approach, in relation to an 11 year old boy "Charles", can be seen in Re Fenwick at 76 NSWLR 65 [245] - 67 [260]. Analysis 80Despite the misgivings here expressed about "legal fictions" in the common law, the true character of the s 22(b) criterion cannot be fully appreciated without recognition of the fictional element of a standard based on a reasonable probability of an imputed intention in a hypothetical setting. It may not be desirable to approach the task at hand by "envisaging a fictitious person, somehow resembling the actual patient"; but it is equally important not to lose sight of the personality, and perspective, of the incapacitated person in making decisions, under a cloak of objectivity, affecting his or her life. 81This case demonstrates a need for caution in the imputation of a testamentary intention in a "nil capacity" case. The Court must be careful not to be overly judgemental about personal faults within a family, and how such faults may impact on family relationships. It must also be careful to avoid imposition on a family of the moral imperatives of public administration, or on an appeal to "community standards" about deserving beneficiaries. As convenient as it may be to describe the necessary perspective of the Court as "objective" rather than "subjective", neither term is found in the text of the Succession Act, and neither may answer the needs of the particular case. 82In imputation of a testamentary intention to a child never possessed of testamentary capacity (Succession Act, s 22(b)), and upon consideration of whether it is "appropriate" for a statutory will to be made for such an incapacitated person (Succession Act, s 22(c)), the Court should refrain from embracing any form of presumption against a parent judged by regulatory authorities to be unworthy. 83To be fair, the Department does not, in these proceedings, invite the Court to proceed on the basis of a presumption but, in my assessment, the tendency of its submissions is in that direction. 84Section 3(2) of the Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW empowered the Court to "refuse to make an order [for family provision relief] in favour of any person whose character or conduct [was] such as to disentitle him to the benefit of such an order." No similar provision found its way into the Family Provision Act 1982 NSW or chapter 3 of the Succession Act (the legislative successors to the 1916 Act), although, under s 60(2)(m) of the Succession Act the Court is entitled, upon consideration of a claim for family provision relief, to consider "the character and conduct of the applicant before and after the date of death of the deceased person" whose estate is the subject of a claim for relief. 85There is no impediment on the Court taking into account "the character and conduct" of a child's parent on an application for authorisation of a statutory will for an incapacitated child, but the Court should not, as a matter of policy or general practice, embrace a concept of "conduct disentitling" against a parent's interests. It should be on its guard against a tendency to do so, natural though that tendency may be in hard cases. 86The Court should also be wary against adoption of an extended form of the common law forfeiture rule (Troja v Troja (1994) 33 NSWLR 269), notwithstanding the absence of a factual foundation for the invocation of that rule of public policy in a case such as the present, or the legislative reform (embodied in the Forfeiture Act 1995 NSW) that empowered the Court to modify the operation of the rule having regard to the facts of the particular case. 87Each case must, of course, depend on its own facts. 88That said, elements of the current case can be found in other cases, which provide illustrations of the potential operation of the Succession Act ss 18-26. 89The second of the two cases considered by Palmer J in Re Fenwick (2009) 76 NSWLR 22 at 63-67 was the "nil capacity" case of "Charles". His incapacity, on the evidence before the Court, was probably caused by his parents' violent abuse of him as a baby. In the absence of opposition from the parents, who had not been charged with, or convicted of, any offence of causing the child's injuries, Palmer J authorised a will to be made, passing over their entitlements on an intestacy, in favour of the boy's sister. A long term carer had expressly disavowed any claim on the boy's estate, and her disavowal was respected in the orders Palmer J made. 90Apart from the boy's carer and parents, his sister was the only person with a claim on his testamentary bounty. Palmer J authorised the making of a will that passed his estate to her, with a gift over in favour of two charities caring for children with disabilities similar to those suffered by him in the event that she predeceased him. 91In a "lost capacity" case concerning an incapacitated adult, Ball J, in Application by Peter Leslie Kelso [2010] NSWSC 357, imputed to the incapacitated person an intention to make a will, and held that it was appropriate to authorise the making of a will, that diverted the incapacitated person's estate away from a former de facto partner whose domestic violence the incapacitated person had escaped via a community refuge. 92In a "nil capacity" case, Palmer J, in Sultana, Application of [2010] NSWSC 915, authorised a statutory will in favour of an incapacitated person's family, who were also his carers, in the absence of any other possible claimant to his testamentary bounty. 93In Crawley, Re the Estate of [2010] NSWSC 618 Palmer J, in authorising the making of a statutory will in a "lost capacity case", took into account in favour of the making of a statutory will his assessment that it was reasonably likely that the incapacitated person would not wish her estate to go to the Crown bona vacantia, but would prefer: (a) the only person with whom she had a surviving close family relationship; and (b) a charity that had earlier been the subject of her favour. 94In AB v CB [2009] NSWSC 680 his Honour authorised the making of a statutory will for an incapacitated teenager in a "pre-empted capacity case" having the effect of excluding the teenager's estranged father from participation in his estate, to the benefit of the teenager's mother and brother in whose day-to-day care she had long lived. 95The jurisdiction of the Court clearly extends to authorisation of a will that excludes from participation in an estate an estranged member of an incapacitated person's family, where, to do so, would confer a benefit on other family members or, more generally, persons who have cared for the incapacitated person. Each of Charles' Case (in Re Fenwick) and AB v CB is an illustration of this. 96However, the Court should be slow to make orders designed, by imputation of an intention to an incapacitated person, to punish a member of family or to recast the law governing beneficial entitlements on an intestacy. As cases such as Andrew v Andrew (2012) 81 NSWLR 656 demonstrate (in a family provision context), in particular cases, the bonds of family may survive even a profound estrangement. 97In a "nil capacity" case, Elayoubi, Application of Wosif [2010] NSWSC 1004, Palmer J made provision for the estranged father of a 25 year old incapacitated person, taking into account competing claims on the bounty of the incapacitated person; the large size of the estate ($5 million); and a possibility that the relationship between the father and the incapacitated child was due to the father's own mental illness. 98Charles' Case is similar to that of C in more than a few respects. Charles' estate, like that of C, took the form of an award of victim's compensation. Like C, he had never had, and would never have, testamentary capacity. Both children were roughly the same age. 99There were, however, significant differences as well: (a)On the findings of Palmer J, Charles' incapacity was caused by parental abuse of him as an infant. C's incapacity had its origins in a congenital disability which had tragic consequences for both mother and child. Even with negligence attributed to K in leaving C with her partner in circumstances in which both she and her partner had taken drugs, K had not been complicit in the assault on C that had resulted in her devastating injuries. (b)Charles had family, other than his parents, to whom his estate could be left. In practical reality, C had no natural family other than her mother. (c)Charles' parents did not object to the making of a statutory will displacing them from their entitlements to his estate on an intestacy. K did object, and explained herself to the Court in maintaining that objection, on the hearing of the Department's application for a statutory will. (d)Whereas Charles' carer disavowed any entitlement to his estate, C's carers (with due reluctance) submitted to the Department's advocacy of their cause. (e)The statutory will made in favour of Charles favoured his sister, with a gift over in favour of charities in the event of her predeceasing him. In C's case, the Department proposed to exclude K from any benefit and, simply, to divide C's estate between her foster parents (carers) and two public hospitals. 100Although each case must depend on its own facts, adoption of the perspective of the incapacitated person for whom a statutory will is proposed (a perspective deeply embedded in the text of the legislation as well as in principles for which the protective jurisdiction of the Court provides) lends a degree of primacy to an incapacitated person's family relationships, however defined. 101Upon consideration of whether to impute a testamentary intention to a 12 year old child (Succession Act s 22(b)), and whether it is appropriate for a statutory will to be made for an incapacitated person of that age (Succession Act, s 22(c)), the Court should not disregard the reality that any child of the same age (whether able-bodied or not) invited to form, or express, a considered view about a will would be likely to be counselled by an adult, or adults, about a perceived need for decisions to be made in a way that is responsible and (to adapt Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20 and related cases) wise and just. An intention imputed to a child in the context of s 22 should, perhaps, at least, be filtered by an adult perspective of the level of understanding required of a competent minor, set out in s 16(4) of the Succession Act: a faint echo of the test for testamentary capacity found in Banks v Goodfellow (1870) LR 5 QB 549 at 565. 102Nor should the Court disregard the possibility that a child with experience of suffering may have a deeper understanding of human frailty, and the need for compassion, than an adult. The complexity of the human condition counsels caution against an imputation of testamentary intention to a 12 year old, incapacitated person against the interests of the child's mother, herself (at least to some extent) an object of pity. 103The size of C's estate is not so large as to be as significant a factor in the Court's decision-making as the effect on the dignity of both mother and daughter of a judicial determination, on the application of the State, that their familial relationship should be discounted to zero. 104Nor should undue significance attach to the source of C's modest wealth in efforts of the State of obtain, for her, public funded compensation for injuries suffered by her at the hands of somebody other than (though proximate to) her mother. Her award of compensation was not granted subject to a reservation in favour of the State or on condition that no benefit flow through her to her mother. 105Neither should the meritorious efforts of hospitals that had cared (and continued to care) for C be seen, even implicitly, as contingent upon the possibility of a future material benefit to those institutions at the expense of the patient's deceased estate. 106In service of the public the State (through the Department and children's hospitals) had acted as a good Samaritan towards C and, in the circumstances of this case, it could reasonably be expected to continue to do so. 107I accept that it may be both possible, and appropriate, in a particular case for a statutory will to be made in favour of a hospital, charity or other institution (public or private) associated with an incapacitated person. That was, in a qualified sense, the outcome in the case of the 11 year old "Charles", considered by Palmer J in Re Fenwick. A will was there made in favour of a sibling, with a gift over in favour of two charities. 108In the present case, I was satisfied that the proper objects for C's bounty were her foster parents and her mother: each in her own way (for they were all women) was a member of C's family; each had a special, personal relationship with C. At the core of this family tragedy was a congenital disability suffered by C, not an injury inflicted on C by K. Whatever her failings, K was not beyond the pity of a child, such as C, with whom there was a family bond and a shared life of tragedy. 109In these proceedings, C's family were indeed her mother, K, and, more prominently in recent years, her foster parents. It was for that reason, one may reasonably infer, that the Department brought them together in September 2013. At the age of 12 these, and other personal relationships, could reasonably be expected to absorb her attention more than any institutional connection. 110C might well have felt deep affection for, and gratitude towards, the staff of the hospitals in which she was treated, and a strong empathy for other children with disabilities for whom her hospitals cared. Nevertheless, the Court should be slow to allow any institution - however worthy - to displace such claims as family might have in the life of a child. 111The State institutions (hospitals) favoured by the Department's proposed Will would not have missed the $12,500 or so they might each have received under such a Will. Whether or not such provision was to be made for them in a Will made for C by order of the Court would, at no time, have had a bearing upon the care and attention to be given to C, by such a hospital, as her due. 112Exclusion of K from participation in C's estate, by intervention of the Court, on an application made by the Department, absent a finding that K was complicit in the assault inflicted on C in 2009, could not have benefited C, or served her interests. On the contrary, it might have served only to alienate mother from daughter beyond the point which circumstances, largely if not entirely beyond their control, had already imposed on their relationship. CONCLUSION 113Informed by a consideration of what was for the benefit, and in the interests, of C; accepting that the Court could, even independently of the Succession Act, authorise the settlement of property of an incapable person on family or a carer; and noting evidence of a positive encounter between mother and child in September 2013, I was satisfied that: (a)the proposed Will (dividing C's estate between her foster parents and her mother) was, or was reasonably likely to have been, one that would have been made C if she had had testamentary capacity; and (b)it was appropriate for orders to be made leading to authorisation of that Will to be made (under the Succession Act, s 18) pursuant to a grant of leave (pursuant to ss 19-20 of the Act) having regard to the criteria for which s 22 provides. 114I was not satisfied that the draft Will proffered by the Department (dividing C's estate between her foster parents and hospitals) was, or was reasonably likely to have been, one that would have been made by C if she had had testamentary capacity. 115Even if I had been of a contrary view, I would not have regarded as "appropriate" an order leading to the making of such a Will at the expense and for the purpose of punishment of K. I was not satisfied, on evidence that included evidence of a positive encounter between mother and child, that it was appropriate for the mother to be excluded from participation in her daughter's estate notwithstanding a prospective legal entitlement, on an intestacy, to do so. ORDERS 116In these circumstances, on 21 July 2014, I made orders to the following effect: (1)ORDER that the order made on 15 July 2014 granting the plaintiff leave under s 19 of the Succession Act 2006 NSW to apply for an order under s 18 of the Act authorising a will to be made for C be varied, so far as may be necessary, to permit order 2 of these orders to be made. (2)ORDER, pursuant to s 18 of the Succession Act 2006, that a will be made on behalf of C in the terms set out in the draft Will, a copy of which is Exhibit "C1" in these proceedings ("the Approved Will"). (3)ORDER that the Registrar be directed to execute the Approved Will (pursuant to s 23 of the Succession Act) forthwith. (4)ORDER that the proceedings be referred to the Registrar, forthwith, to enable the Approved Will to be executed. (5)ORDER that these Orders be entered forthwith. (6)NOTE that no orders as to the costs of the proceedings are made, to the intent that each party pay or bear his or her own costs. (7)RESERVE liberty to apply. (8)NOTE that the non-publication order made on 15 July 2014 is continuing. 117The "Approved Will" was in terms to the following effect: " LAST WILL OF [C] This Will is made by me [C], a minor under the sole parental responsibility of the Minister for Family and Community Services, pursuant to an Order made on 21 July 2014 by the Supreme Court of New South Wales (in proceedings numbered 2014/00208512 in the Probate List of the Equity Division of the Court) authorising a will to be made on my behalf. I revoke all previous testamentary acts. I appoint the New South Wales Trustee and Guardian as the Executor and Trustee of this my will ("the Trustee"). I give the whole of my estate, of whatever kind and wherever situate, to the Trustee to pay all my just debts, taxes and funeral and testamentary expenses (including the cost of administering my estate) and thereafter to divide my estate into two parts to be held on trust: (a) as to one part, for my mother, [K] for her own absolute use and benefit. (b) as to the other part, for my foster parents, ----, as tenants in common in equal shares, for their own absolute use and benefit. In the event that my mother predeceases me, or does not survive me by 30 days, I direct that her share of my estate pass to my foster parents for their own absolute use and benefit. In addition to any other powers my Trustee may have by law, I empower the Trustee, in its discretion, without the consent of any beneficiary, to appropriate any part of my estate in or towards the satisfaction of a share of any beneficiary and, for that purpose, to value any property forming part of my estate by a determination made in its absolute discretion. Date: 21 July 2014 This Will is signed by a Registrar of the Supreme Court of New South Wales, and sealed with the seal of the Court, pursuant to section 23 of the Succession Act 2006 NSW and the Order of the Court made pursuant to section 18 of the Act. -------------------------------- Registrar" 118The will authorised to be made on 21 July 2014 was sealed, and signed by a Registrar in conformity with s 23, that same day. ********** 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. Decision last updated: 12 August 2014