In Sangen v Sangen [2021] VSC 590, the executor of his late mother’s will sold her house, but refused to settle. His brother, the co-beneficiary, sued him. The executor’s solicitor filed an affidavit attesting to doubt about his client’s capacity, and remained on the record. The executor filed no medical evidence. In yet another contemporary reminder of the breadth and vigour of the Court’s inherent jurisdiction to regulate its own procedure, Moore J recognised that he had the Court’s inherent power to order the executor to be medically examined to report on his capacity. His Honour appointed counsel to appear as amicus curiae, instructed by the executor’s solicitor. The executor represented himself, from a public phone box.
The litigant vigorously opposed the course which Moore J settled upon, a referral under s. 179 Guardianship and Administration Act 2019. His Honour relied on both the executor’s solicitor’s affidavit, the submissions of amicus curiae, and his own analysis of the executor’s communications with the Court, including a hand-written letter explaining his objections to settling the sale of his late mother’s house. His Honour noted that a litigant is entitled to be heard before an order is made under s. 179, and said:
‘Although it would remain for the Court to determine whether or not the defendant has the requisite mental capacity, in undertaking that task, the Court is likely to be assisted by VCAT’s consideration of whether an administrator or supportive administrator should be appointed in relation to the conduct of the defendant’s affairs and any relevant material, including medical evidence, which may be produced in the course of VCAT’s consideration of that issue.’
