VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G88325	
CATCHWORDS	
Guardianship List – application about an enduring power of attorney – application for order that former joint attorney produce copies of wills or drafts and that VCAT provide them to the attorney  – purpose of provisions empowering VCAT to order production of principal’s will and provide it to others – interpretation of legislation – extrinsic material – purpose of the legislation – exception to ademption – access to will to avoid risk of ademption – VCAT has discretion – privacy of the principal – Powers of Attorney Act 2014 sections 83A, 83B, 134A, 134B, 134C – Interpretation of Legislation Act 1984 section 35 – Charter of Human Rights and Responsibilities Act 2006 sections 7, 13, 32	

principal	WQN	
WHERE HELD	In Chambers	
BEFORE	Senior Member B. Steele 	
DATE OF final written submission	27 May 2020	
DATE OF ORDER and written reasons	31 July 2020	
citation	WQN (Guardianship) [2020] VCAT 814	

Order
The attorney’s application for orders that the former joint attorney produce copies of wills and draft wills and that the copies be provided to the attorney is dismissed. 

B. Steele
Senior Member			

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 51AJ of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Powers of Attorney Act 2014 that identifies or could lead to the identification of a party to the proceeding.

Background
1	In these reasons for decision, the principal is referred to as WQN, to protect his privacy and to comply with Clause 51AJ of the Victorian Civil and Administrative Tribunal Act 1998. His attorney is referred to as JKJ and former attorney as YWJ, for the same reasons.
2	On 6 September 2019, JKJ, one of two joint attorneys appointed by WQN (the principal) under a power of attorney, applied to VCAT seeking amongst other things orders that YWJ, the other attorney, cease acting as attorney. The attorney is the son of the principal and the former attorney is the daughter of the principal. 
3	On 24 February 2020, VCAT revoked the appointment of YWJ (with her consent), leaving JKJ as the sole attorney.
4	WQN now has dementia and is unable to make decisions about his own financial affairs, according to a medical report on file, dated 11 September 2019.
5	JKJ (the applicant) claims that YWJ (the respondent) should compensate the principal for funds which the applicant says were misappropriated by the respondent. That application will be heard by the Tribunal soon.
6	In the course of the proceeding, an issue arose about the last will and testament of the principal. As the applicant puts it, during correspondence about the respondent’s conduct as a joint attorney, there arose an allegation that the respondent had arranged for the principal to change his will.
7	While the respondent neither admitted nor denied this, her representatives, the applicant says, produced a copy of what was said to be “a draft will which our client believes to reflect the terms of [WQN’s] last will and testament”. Further, the respondent referred to the signing of a new will in her witness statement dated 21 January 2020.
8	The applicant complains that the respondent (the former joint attorney) has not explained how she came to possess that document. A copy of it was filed with VCAT along with other documents. 
9	The applicant also complains that the respondent has given no explanation of her refusal to produce the wills referred to in her correspondence or explain their whereabouts. 
10	The applicant asks the Tribunal to order under sections 134A, 134B and 134C of the Powers of Attorney Act 2014 (the POA Act) that the respondent produce to the Tribunal any wills that were executed by the principal together with revoked wills or drafts which are in her possession, custody or control and that copies of the will produced are to be made available to the applicant.
11	The respondent opposes that application. 
The law
The POA Act
12	The relevant sections of the POA Act provide as follows:
134A. 	VCAT may open and read any paper or writing that is a 
will, a revoked will, a purported will or a copy of a will of— 
(a)	a principal under an enduring power of attorney who does not have testamentary capacity; or 
(b)	a deceased person who, immediately before the person died, was a principal under an enduring power of attorney. 
134B.	VCAT may make an order compelling a person who has possession or control of a will, a revoked will or a purported will of a principal who does not have testamentary capacity to produce that document to VCAT— 
(a)	for the purposes of section 134A; or 
(b)	on the application of an attorney under an enduring power of attorney
134C. 	VCAT may make available to an attorney under an enduring power of attorney a full or redacted copy of a will, a revoked will or a purported will of the principal if the principal does not have testamentary capacity. 
13	On the face of those provisions, VCAT has power to make the orders the applicant seeks. The applicant submits that VCAT’s discretion to take the actions or make the orders is unfettered, because the statute does not prescribe the circumstances for VCAT to exercise those powers. 
The purpose of sections 134A to 134C
14	The respondent on the other hand submits the powers in sections 134A, 134B and 134C were added to the POA Act at the same time as provisions to avoid the effects of ademption on a testamentary bequest affected by the actions of the testator’s former attorney.
15	This indicates, the respondent submits, that sections 134A to 134C, which  override the long-standing common law rule that a representative does not have a right to access a principal’s will, only do so to the extent that access to a will is required to enable the attorney to consider any ademption.  
16	Both parties referred in their submissions to the Inquiry into Powers of Attorney, a report of the Victorian Parliament Law Reform Committee. The recommendations of that Committee were mostly enacted in the POA Act in 2014.  
17	Before turning to the report, I note that section 35 of the Interpretation of Legislation Act 1984 permits the use of extrinsic materials in interpreting Victorian legislation. Section 35 provides:
In the interpretation of a provision of an Act or subordinate instrument— 
(a)	a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and 
(b)	consideration may be given to any matter or document that is relevant including but not limited to— 
(i)	all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; 
(ii)	reports of proceedings in any House of the Parliament; 
(iii)	explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and 
(iv)	reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies. 
18	Accordingly, material extrinsic to the legislation itself may be used to identify the purpose or object of the legislation and construct the legislation so as to promote that purpose or object. 
19	At page 159 of its report on powers of attorney, as each party noted in its submissions, the Victorian Parliament Law Reform Committee (the Committee) said:
At common law a representative is not entitled to access a principal’s will unless access is specifically authorised in the power of attorney document or is required for the management of the principal’s affairs under the power of attorney.
20	The Committee went on as follows:
The Committee recognises that bequests in a will may impact on a representative’s management of a principal’s financial and legal matters. However, the Committee does not consider that it has received sufficient evidence on this issue to justify overriding the long-standing common law rule that a representative does not have a right to access a principal’s will.
21	The Committee suggested the Government should consult further on this issue.
22	Neither party referred me to the subsequent history of that consultation, although each noted that section 134A to 134C were inserted in the POA Act in 2017.
23	A Bill which became the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 was introduced to the Victorian Parliament in November 2016. Amongst other things, it amended the POA Act by inserting sections 134A to 134C and sections 83A and 83B.  
24	On moving the second reading of the Bill, the then Attorney General said at the start of his second reading speech:
The bill will implement most of the outstanding recommendations from the Victoria Law Reform Commission’s 2013 Succession Laws report. 
25	Later, he went on:
Lastly, the bill will implement the report’s recommendations in relation to ademption, which happens when a gift in a will has been sold or destroyed or given away prior to the death of the will-maker, and as a result the beneficiary who would have received the gift receives nothing. …An exception to ademption applies where the deceased’s affairs have been managed by an administrator. …the bill will amend the Powers of Attorney Act 2014 to provide that an exception to ademption should also apply in the case of an enduring power of attorney. …The bill will also allow a person acting under an enduring power of attorney, where the person has lost testamentary capacity, to apply to the Victorian Civil and Administrative Tribunal for access to a will or part of a will, so that they can determine which specific assets are to become gifts and are at risk of ademption if they are disposed of.
26	To fill the gap between the Parliamentary Report and the 2016 Bill, I refer to the Succession Laws Report of the Victorian Law Reform Commission mentioned by the then Attorney General in his second reading speech.
27	The Succession Laws Report relevantly recommended as follows:
Guardianship legislation should provide for a person acting under an enduring power of attorney (financial) to apply to the Victorian Civil and Administrative Tribunal for a full or redacted copy of a will made by the donor of the power. The Tribunal would be able to grant access only where the donor does not have testamentary capacity.
28	The recommendation appeared at the end of a section headed “Access to a person’s will to prevent ademption” and followed a section headed “Acts by persons acting under an enduring power of attorney (financial)” which discussed ademption and recommended as follows:
The Instruments Act 1958 (Vic) should be amended to provide an exception to ademption when property is sold or otherwise disposed of by a person acting under an enduring power of attorney (financial). The exception should align with the exception that will apply to administrators under section 53 of the Guardianship and Administration Act 1986 (Vic)…
29	By the time legislation based on the Succession Laws Report was brought to Parliament in 2016 (and passed in 2017), the provisions about enduring powers of attorney from the Instruments Act 1958 had been replaced by the  POA Act, so the recommendations about ademption and access to wills were applied to that Act. 
30	At the same time as sections 134A to 134C were inserted into the POA Act, sections 83A and 83B were also inserted, as the respondent pointed out in its submissions.
31	Those sections, which I will not set out here, create an exception to the common law rules of ademption so that the acts of an attorney need not nullify a testamentary bequest of a principal. 
32	That legislative history provides guidance for the Tribunal’s exercise of the discretions in section 134A to 134C of the POA Act.
Whether sections 134A to 134C can only be used to avoid ademption
33	The respondent contended that the powers in sections 134A to 134C should only ever be exercised to the extent that access to a will is required to enable an attorney to consider any ademption that may occur when dealing with a principal’s assets. 
34	The legislative history does not create a rule to that effect. Parliament could have specified in the legislation that exercise of the Tribunal’s discretion in sections 134A to 134C was limited to assisting an attorney to avoid the effects of ademption. It did not take that step.
35	In Alcoa Portland Aluminium Pty Ltd v Victorian WorkCover Authority, Chernov JA, interpreting a relatively new section of the Wrongs Act 1958, said: 
The starting point in seeking to ascertain Parliament’s intention as to the meaning of s 28IA(2) is to give the words used by the legislation their ordinary and natural meaning in the context of the Act and relevant legislative history. As Callaway JA pointed out in R v Best, extrinsic materials are an aid to construction not a substitute for legislation. And although it seems plain enough that, in construing the legislation, the court may have regard to extrinsic materials to ascertain the purpose of the legislation even if it considers that there is no ambiguity in the language, it is not bound to do so.
36	In that case, His Honour went on to consider the Parliamentary Debates and did not interpret the section in line with the relevant speech in Parliament as suggested by Counsel, essentially because he found the remarks in the speech were inconsistent with the plain words of the statute.
37	In Secretary to the Department of Justice and Regulation v Century 21 Australia Pty Ltd, the Court of Appeal, referring to the Alcoa case amongst others, said:
Ultimately, the resolution of this case depends upon the construction of the definition of ‘franchising agreement’ in s 43(5) of the Act and the application of the statutory provision so construed. As has been said repeatedly, the task of statutory construction must begin and end with a consideration of the text itself, and the text must be construed in its context and bearing in mind the legislative purpose of the provisions of the Act.
38	Later, Their Honours said:
As part of the exercise of construing a statute, s 35(b) of the Interpretation of Legislation Act 1984 permits consideration to be given to relevant parliamentary debates. As was said in Stingel, however, the subjective contemplation of those involved in the drafting of a statute, as to the kind of case in which the statute would be most likely to be applied, is not determinative.
39	That principle is applicable here. Although the legislative history indicates that the purpose or object of sections 134A to 134C was to assist an attorney in identifying bequests which might be affected by the rules of ademption, there is no law imposing such a limit on the application of those sections. Extrinsic materials are not a substitute for legislation. The possibility remains open that there will be occasions for the use of those powers which are not related to the effects of ademption.
The privacy of the testator
40	On the other hand, as the Parliamentary Committee noted in 2010, there is a long-standing common law rule that a representative does not have a right to access a principal’s will. A principal can choose who is given a copy of their will. If the principal has not chosen to give a copy to someone, there is a possibility the principal has made a deliberate decision to keep it private.  
41	The Succession Laws Report acknowledges that the privacy of a person’s will is important. For example, it acknowledges that a legal practitioner holds a copy of a person’s will on a strictly confidential basis.
42	In addition to the common law, a person’s right to privacy is protected by section 13 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), which relevantly provides:
A person has the right—
(a)	not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and …
43	Section 7 of the Charter relevantly provides as follows:
(2)	A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)	the nature of the right; and
(b)	the importance of the purpose of the limitation; and
(c)	nature and extent of the limitation; and
(d)	the relationship between the limitation and its purpose; and
(e)	any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
44	Section 32 of the Charter provides that, as far as it is possible to do so consistently with the purpose of a statutory provision, it must be interpreted in a way that is compatible with human rights. 
45	Taking all this into account, the use of sections 134A to 134C for any purpose other than the purpose identified in the second reading speech must be justifiable in the light of the principal’s right to privacy. An exercise of the powers in those sections is a limitation on the principal’s right to privacy. Avoiding the risk of ademption is a limitation whose purpose was accepted and sanctioned by Parliament when inserting sections 134A to 134C into the POA Act. The use of those sections for any other purpose must be demonstrably justified, as set out in the Charter.
Whether the application in this case should be granted 
46	The applicant submitted the following reasons why he should be granted access to any will or draft will: 
a	he has fiduciary obligations to implement the principal’s wishes, protect his financial interests and preserve his assets;
b	this includes gathering any legal or financial documents for safe keeping and custody;
c	in the present case that includes locating and taking possession of any wills and determining which document, if any, is the most recent will and testament of the principal that was made while he had capacity;
d	it is desirable that all matters pertaining to the principal’s affairs and any issues with regard to the exercise and extent of his attorney’s powers are resolved expeditiously and without a proliferation of proceedings;
e	the respondent has given evidence that, put at its highest for the respondent, she permitted the principal to prepare and execute two wills at a time when she was aware that he lacked capacity; and 
f	the respondent has given no explanation for that conduct.
47	I am not persuaded that reading the principal’s will or purported will would assist the applicant to protect the principal’s current assets. There was no suggestion that the applicant is unable to identify the assets.
48	Further, I heard nothing to indicate that there are assets which might be the subject of a specific bequest which the applicant should respect in his management of the principal’s affairs.
49	I do not understand how reading the principal’s will or purported will would assist the applicant to preserve the principal’s assets or protect his financial interests. While that might include gathering legal documents for safe keeping it is not necessarily the case that there are relevant legal documents which are not safe. 
50	There is no evidence about how the applicant would be assisted in his task of administering the financial affairs of the living principal by the determination of which document is the principal’s most recent will and whether the principal had capacity when he signed any will. The duties of the attorney clearly do not extend to ascertaining the principal’s testamentary wishes or implementing them. 
51	Accordingly, there does not appear to be any circumstance which justifies the exercise of the Tribunal’s powers to order the respondent to produce the principal’s will or purported or draft will, to read that document or to provide a copy of it to the applicant. 
52	Finally, I note that the powers in sections 134A to 134C are exercisable only where the principal lacks testamentary capacity. While the material before me indicates that the principal lacks the capacity to make decisions about his finances, it does not address the (related but not identical) question of his testamentary capacity. 

53	For the above reasons, the attorney’s application for orders that the former joint attorney produce copies of will and draft wills and that the copies be provided to the attorney is dismissed.

B. Steele
Senior Member