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A Limited v J

A Limited v J

Case [2017] NSWSC 736 7 June 2017

Testamentary Capacity

Ex Tempore Judgment

Fiduciary Duty

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: A Limited v J [2017] NSWSC 736
Hearing dates: 31 May 2017
Date of orders: 31 May 2017
Decision date: 07 June 2017
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraphs 56-57.

Catchwords: SUCCESSION – Statutory wills – Order made authorising a will be made on behalf of a thirteen year-old child – Where child was severely disabled and lacked testamentary capacity – Where application made the day before the child was to undergo life threatening surgery – Where application sought to exclude father of the child from the child’s will – Where mother claimed that father had failed to fulfil responsibilities as a parent – Where orders made and judgment delivered ex tempore – Further reasons for judgment.
Legislation Cited: Succession Act 2006 (NSW) ss 18, 19, 20, 21, 22, 23
Cases Cited: AB v CB [2009] NSWSC 680
Re Elayoubi [2010] NSWSC 1004
Re Estate of Crawley [2010] NSWSC 618
Re Estate of Scott [2014] NSWSC 465
Re Fenwick; Application of J R Fenwick; re ‘Charles’ (2009) 76 NSWLR 22; [2009] NSWSC 530
Re Sultana [2010] NSWSC 915
Re Will of Jane [2011] NSWSC 624
Secretary, Department of Family & Community Services v K [2014] NSWSC 1065
Category: Procedural and other rulings
Parties: A Limited (plaintiff)
The mother (first defendant)
The father (second defendant)
Representation:
Counsel: R D Williams (plaintiff)
R Cunich, solicitor (first defendant)
P Wallis (second defendant)
Solicitors: Unsworth Legal (plaintiff)
Keypoint Law (first defendant)
Benjamin & Robinson (second defendant)

File Number(s): 2017/163312

Judgment

On 31 May 2017 at 5:25 PM, I made an order under s 18 of the Succession Act 2006 (NSW) (the Act) that a will be authorised to be made on behalf of a 13-year-old child, in the form of a draft will that was initialled by me and dated that date.
As the subject of the application is a minor, I will anonymise the parties, and refer to the minor as N.
The summons seeking the order was filed on the same day at 10:43 AM, and the matter came before me, sitting as duty judge, during the course of the morning.
Most unfortunately, N has since birth suffered from a significant number of extreme physical disabilities that were caused by the circumstances of his birth, during which his brain was deprived of oxygen.
It is not necessary to relate the nature of N’s physical disabilities in detail, and it is sufficient to say that the evidence clearly established that N lacks and always has lacked any semblance of practical testamentary capacity, as all parties to the proceedings accepted.
N fits within the category of “nil capacity case” as described by Palmer J in Re Fenwick; Application of J R Fenwick; re ‘Charles’ (2009) 76 NSWLR 22; [2009] NSWSC 530 at [171], where his Honour said:

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A Limited v J

Details

AGLC: A Limited v J [2017] NSWSC 736
Case: [2017] NSWSC 736
Decision Date: 07 June 2017

CaseChat Overview and Summary

In the case of A Limited v J, the dispute involved the succession of a severely disabled thirteen-year-old child who lacked testamentary capacity. The matter was heard in the Supreme Court, where the court was asked to make an order to authorise the creation of a will on behalf of the child. The mother of the child sought to exclude the father from the child’s will, claiming that he had failed to fulfil his responsibilities as a parent. The application was made the day before the child was scheduled to undergo life-threatening surgery, creating a sense of urgency in the proceedings. The court was required to decide on the validity of the mother’s application and whether it was appropriate to exclude the father from the will.

The legal issues before the court encompassed the principles of statutory wills, particularly in the context of a severely disabled child lacking testamentary capacity. The court had to consider the statutory framework governing such matters and assess whether the application to exclude the father was in the best interests of the child. Additionally, the court needed to evaluate the evidence presented regarding the father’s parental responsibilities and determine if there were sufficient grounds to exclude him from the will. The urgency of the situation, given the child’s impending surgery, further complicated the court’s decision-making process.

The court, after reviewing the evidence and considering the statutory provisions, concluded that the application to exclude the father from the will was in the best interests of the child. The court found that the father had indeed failed to fulfil his parental responsibilities, which justified his exclusion from the child’s will. The orders were made and judgment was delivered ex tempore, with further reasons provided subsequently. The court’s decision was based on a careful assessment of the child’s welfare and the statutory requirements applicable to the creation of a will for a severely disabled child.

Orders