Overview

If you have been charged with an offence and suffer from a mental illness, you may be able to make an application in the Local Court for a section 14 order. Section 14 applications are governed by the Mental Health and Cognitive Impairment Provisions Act 2020 (“the Act”). Section 14 replaced section 32 of the previous legislation, the Mental Health (Forensic Provisions) Act 1990.

A section 14 application, if successful, will mean that there is no conviction recorded against you in respect of your charges, provided you comply with a mental health treatment plan.

In order to successfully make a section 14 application, you are required to establish:

1. That you have a mental health impairment or cognitive impairment (or had such an impairment at the time of the offending conduct);

2. That you are not “mentally ill” as defined in the Mental Health Act 2007 (NSW); and

3. That it is more appropriate for the Court to deal with you under section 14 than otherwise in accordance with the law.

Mental Health Impairments and Cognitive Impairments

A mental health impairment is an impairment that causes a significant temporary or ongoing disturbance of your thought, mood, volition, perception or memory, such that your emotional wellbeing, judgment or behaviour was impaired at the time of the alleged conduct.

Examples of conditions that may qualify as a mental health impairment include anxiety, depression and bipolar disorder.

Similarly, a cognitive impairment is an impairment which causes a reduction in your adaptive functioning, comprehension, reason, judgment, learning or memory. Conditions which may constitute a cognitive impairment include intellectual disability, dementia, brain injury, autism and drug or alcohol related brain damage.

When is a Section 14 Order Appropriate?

In considering whether it is more appropriate to deal with you under section 14 than otherwise, the Court will consider several factors, which include:

1. The nature of your mental health impairment or cognitive impairment;

2. The nature, seriousness and circumstances of your alleged offending;

3. The suitability of the sentencing options available if you are found guilty of the offence;

4. The relevant changes in your circumstances since the alleged offending;

5. Your criminal history;

6. Whether you have previously been the subject of a section 14 order;

7. Whether a treatment or support plan has been prepared for you and, if so, the content of that plan; and

8. Whether you are likely to endanger the safety of yourself, the victim or any other member of the public.

Requirements of a Section 14 Application

In order for a section 14 application to be successful, you will require a report prepared by a psychologist or psychiatrist, going to your relevant personal history and mental health, the connection between your mental health and offending and confirming that you have a mental health or cognitive impairment.

The report should also include a treatment plan, which may require you to see a GP or specialist (such as a psychologist or psychiatrist) on a regular basis, take certain medications, or abstain from drug and alcohol use.

A section 14 application should also include a letter from a responsible person who can supervise the treatment plan set out in the expert report and report any breaches, such as your treating GP, psychologist or psychiatrist.

Other documents which may support a section 14 application include medical records establishing your history of mental health or cognitive impairment, character references from friends and family members and/or a letter of apology.

Outcome of a Section 14 Application

If you are successful in your section 14 application, the Court will discharge you into the care of a responsible person, either unconditionally or conditionally. If the order is made conditionally, then you will be required to follow the treatment plan set out in the expert report, for a period of 12 months.

Alternatively, under section 13 of the Act, it is open to the Court to adjourn proceedings against you to enable your mental health impairment or cognitive impairment to be assessed or diagnosed, to allow a treatment plan to be developed or a responsible person identified or to give you an opportunity to implement your treatment plan, subject to which the Court may then dismiss the charges against you.

Importantly, if you fail to comply with your treatment plan or the terms of any order made by the Court, you may be brought back before the Court and face criminal penalty.

Case Studies

The criminal law team at Uther Webster & Evans is experienced in preparing section 14 applications for a range of criminal conduct.

In one recent matter, our firm acted for a client who was charged with stalking and intimidation with intent to cause fear of physical harm. The client was alleged to have intimidated a retail worker in front of several witnesses and had a criminal record. Despite the client’s prior record, UWE successfully ran a section 14 application, on the basis that the client’s bipolar disorder, ADHD and PTSD had materially contributed to the offending conduct. Accordingly, the magistrate dismissed the charges and released the client into the care of his treating psychologist.

In another matter, our firm acted for a client who was charged with three offences: common assault, using a weapon with intent to commit an indictable offence and contravention of an AVO. The client had used a hammer to strike the victim on the head and rib (whilst the victim wore protective gear). Notwithstanding the objectively serious nature of the conduct and the number of charges, the magistrate agreed to make a section 14 application, ruling that the client had been under an impairment at the time of the conduct arising from his bipolar disorder.

The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for a section 14 application, please contact our experienced criminal law team.

Written by Bailey Brown

It is generally recommended that a person reviews and considers their will every three to five years. It may be that no material changes have occurred in that person’s life and their will still accurately reflects their testamentary intentions. However, there are a number of circumstances where, by certain acts, a person’s testamentary intentions may be altered in ways that they did not intend, and it will be very important for them to update their will in those circumstances, including:

1. The disposition of property specifically gifted in their will;

2. Marriage or divorce; and

3. The loss or accidental destruction of their original will.

Disposition of Property Specifically Gifted Under Will

Where a testator leaves a specific gift in their will, for example, a specific property, but that asset is no longer available or owned by that person when they die, then the asset is adeemed and the gift will be of no effect. In those circumstances, in relation to that gift and subject to certain limited circumstances, the beneficiary will not receive any gift of equivalent value from the estate.

If you had allowed for a specific gift to be made to a beneficiary under your will and have subsequently sold that property but you still wish for the beneficiary to receive under your will, it will be important to review and update your testamentary intentions.

Divorce and Marriage

Pursuant to s13 of the Succession Act 2006 (NSW) (the “Act”), unless a contrary intention appears in the will, the divorce of a testator revokes any gift made to the testator’s former spouse and any appointment of the former spouse as the testator’s executor. The balance of the testator’s will remains effective.

Similarly, pursuant to s12 of the Act, unless a will is made in contemplation of marriage, the subsequent marriage of the testator will revoke the testator’s will, except for gifts made to the person the testator married and the appointment of the person who the testator married as executor.

A recent decision of the Supreme Court of NSW clearly highlights the importance of updating your will as your personal circumstances change. In this case, Re Estate Grant, deceased [2018] NSWSC 1031, the Court had to consider whether a testator’s will was revoked by his subsequent marriage to his second wife.

The will in question appointed the deceased’s brother as executor and gifted the whole of his estate equally to his three children from his previous marriage, being two twin biological sons and a stepson who he treated as his own child. This will was executed by the deceased on 3 January 2014 and his second marriage occurred on 19 September 2015.

The deceased’s widow contends that the will was not made in contemplation of marriage and so was revoked by her marriage to the deceased. The deceased’s three children contend that it was made in contemplation of the deceased’s marriage and therefore not revoked.

If the deceased’s will was revoked by marriage, and he accordingly died intestate, his beneficiaries (by operation of Chapter 4 of the Act) would be:

1. The deceased’s widow (under ss104(a) and 113 of the Act), as to:

(a) the deceased’s personal effects (as defined by s101 of the Act);

(b) a statutory legacy (as defined by ss101 and 106 of the Act); and

(c) one-half of the remainder of the deceased’s estate; and

2. The deceased’s twin sons (under s127(2) of the Act), as to the other half of the remainder of the estate. The deceased’s stepson would not receive anything from his estate on intestacy.

Of a net estate with an estimated value of about $4.4 million, on intestacy, the widow’s share was estimated to be worth about $2.4 million and the respective shares of the deceased’s twins were estimated to be worth about $990,000 each (subject to orders for costs made in the proceedings). If the deceased’s will was admitted, the deceased’s widow would not receive anything from the estate (subject to determination of her alternative family provision claim).

In considering whether the will was made in contemplation of his subsequent marriage, his Honour, Lindsay J, stated:

“It is not enough, for a will to have been “made in contemplation of a particular marriage” within the meaning of section 12(3) of the Succession Act, that the will-maker was, when the will was made, merely conscious of a possibility of a future marriage, or that he or she had been conscious of the possibility. To get beyond “a mere consciousness of a possibility” of a future marriage a will-maker, at some time in the process of making his or her will, must have brought to mind not only the possibility of a formal act of marriage but also claims on his or her bounty associated with the marriage. The expression “contemplation of a particular marriage” refers to contemplation of “the rights and obligations which stem from” a “legally recognised status of marriage”, not merely a casual contemplation of the bare formalities of a marriage ceremony.”

His Honour found that at the time the deceased made his will, his de facto relationship was not bound to end in marriage, and he did not consider the possible claims his widow might have on his estate at the time of executing the will. At that time, the deceased was more concerned with the claims his ex-wife and estranged stepchild might have on his estate.

For these reasons, his Honour concluded that the will was not made in contemplation of marriage and accordingly it was revoked by that marriage. Therefore, the deceased died intestate, and his estate must be administered on intestacy (subject to family provision proceedings brought by the deceased’s stepchild).

Loss or Destruction of Original Will

A person’s will will not automatically be revoked in circumstances where it is accidentally lost or destroyed by that person as the relevant act of destruction must be accompanied by an intention to revoke the will1. However, while it will not automatically revoke the will, if you accidentally lose or misplace your original will in circumstances where it was last known to be in your possession, such that on your death it cannot be found, there is a rebuttable presumption that you destroyed it with the intention of revoking it.

Justice Campbell in the matter of Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561 (10 July 2002) [59] stated that the strength of that presumption will depend on how the deceased maintained custody of the will as follows:

“It refers to facts concerning the physical arrangements the testator has for security of the Will – for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket – who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.”

In the recent case of The Estate of Smith [2024] NSWSC 568, his Honour, Hammerschlag CJ in Eq considered an application made by a deceased’s son where the original will of the deceased could not be located and therefore, the presumption that it was destroyed by the deceased applied.

In this matter, the deceased was survived by his three children and had left a will gifting the whole of his estate to them equally, however, the original will could not be located. Although the position on intestacy would result in the same outcome as the gifts made in the will, the matter was required to be considered by a Judge as the Registrar was unable to issue a grant of probate without the original will.

The deceased’s son and executor appointed under the will sought orders that he be granted probate of a copy of the deceased’s will, or in the alternative, a declaration that the deceased died intestate, together with orders for the grant of letters of administration.

Hammerschlag CJ in EQ stated:

“Where an original will cannot be found, a rebuttable presumption of revocation by destruction arises. The rebuttal of the presumption is not difficult where the will makes a careful and complete disposition of the testator’s property, and there are no other circumstances to point to a probable destruction: see Heffernan v Innes [2021] NSWCA 1033 at 433 and following, and the authorities cited there.”

His Honour ultimately went on to state that he was satisfied that there was sufficient evidence to rebut the presumption of revocation, and the copy of the will was admitted to probate.

Although the presumption was ultimately rebutted in this case, the parties still had to go to the expense of bringing the proceedings, and the administration of the estate was delayed until orders were made by the Court.

Ensuring that your will remains up to date is essential to protecting your wishes and providing certainty for your loved ones. Life events such as marriage, divorce, changes in asset ownership, or the loss of the original will can have significant legal consequences, potentially altering how your estate is distributed. Regularly reviewing and updating your will can help avoid unintended outcomes, disputes, and costly legal proceedings. If you need assistance in drafting, reviewing, or updating your will, our experienced estate planning team is here to help

Written by Despina Bouletos

On 26 November 2024, the Supreme Court recently handed down its decision of Chester v Cowin [2024] NSWSC 1554. This case concerned the estate of the late Malcolm Chester, who died intestate on 25 May 2022. Malcolm left two daughters, Geraldine and Penelope, who were each entitled to 50% of his estate pursuant to the rules of intestacy. Malcom’s estate consisted primarily of a property at Reindeer Place, Werrington (valued at $760,000) and cash at bank (valued at $109,055).

Factual Matrix

Geraldine had, for the majority of her lifetime, resided at the Reindeer Place property with Malcolm. Geraldine had four children, Matthew, Mitchell, CW and TW (CW and TW being minors) who also resided at the property with Geraldine.

Geraldine and each of her children commenced proceedings seeking further provision from Malcolm’s estate. The provision sought by each of the plaintiffs was, in effect, that Geraldine and her children have the right to reside in the Reindeer Place property until the youngest child attained adulthood.

Both Penelope and Geraldine had a close and loving relationship with Malcolm, and there was no evidence to the contrary.

Importantly, although Malcolm died intestate, he left a handwritten document dated March 2020 indicating his intention that Geraldine and her children be allowed to remain living in the property, until her youngest child attained adulthood.

Geraldine and her two adult children provided limited and incomplete evidence of their financial circumstances. In respect of Geraldine’s two minor children, no evidence whatsoever was provided as to their financial or social needs, including where they attended school, their extra-curricular activities and the quantum of any financial support received from their father.

Findings by the Court

The Court held that each of Geraldine and her four children were eligible persons to bring a family provision application. Further, the Court held that there were factors warranting the making of such an application by each of Geraldine’s children, such factors being the close relationship of dependency each child had with Malcolm for the whole of their lives, with Malcolm supplying their housing and taking responsibility for a considerable portion of their upbringing.

The Court then considered what bearing the incomplete financial disclosure by each of the plaintiffs had on their applications. The Court referred to the case of Sgro v Thomson [2017] NSWCA 326 in which it was held that, financial need is one indicator as to whether adequate provision has been made, but not the sole or predominant consideration.

The Court held that, if it had been required to be satisfied that the plaintiffs had not been left adequate provision in terms of financial need, it likely would have dismissed the plaintiffs’ summons, as the evidence did not demonstrate their financial need in any meaningful way and was “manifestly deficient”.

However, it was necessary to consider financial need as only one of the factors set out in s 60 of the Succession Act 2006 (NSW). The Court found that several other factors enumerated in s 60 were relevant, including:

· Each of the plaintiffs were dependent on the deceased for a long period;

· The nature of Malcolm’s estate was such that he was able to make provision for both his daughters and grandchildren;

· Malcolm’s testamentary intentions (set out in his note); and

· Gerladine’s minor children had lived their entire lives at the Reindeer Place property. Accordingly, any provision which did not provide them the opportunity to continue residing in that property until attaining adulthood would be inadequate.

Ultimately, the Court made a finding that Geraldine and her two minor children had not been left adequate provision, because, under an intestacy position, they could not continue living in the Reindeer Place property.

The Court made an order for further provision by granting each of them the right to occupy the house until each of the minor children attained adulthood. However, the Court made an order that Geraldine was to pay a fee equal to one third of the market rental for the property for the duration of that time. The Court made no order in relation to the claims by Geraldine’s adult children.

Implications

This case has important implications for family provision applicants and serves as a timely reminder of the need to provide detailed evidence of financial need in order to avoid inviting criticism from the Court. However, this case makes clear that it is possible for a finding of provision to be made, notwithstanding a lack of meaningful evidence regarding financial need by an applicant.

The contents of this post are for informational purposes only. They do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. If you require legal advice or representation for your succession matter, please contact our experienced succession law team.