Legal Research
Cases
A Ltd v J (No 2)

A Ltd v J (No 2)

Case [2017] NSWSC 896 5 July 2017

Statutory Wills

Succession Act 2006 (NSW)

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: A Ltd v J (No 2) [2017] NSWSC 896
Hearing dates: 30 June 2017
Date of orders: 03 July 2017
Decision date: 05 July 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Grant leave to the plaintiff to make an application on behalf of the Child for an order authorising a will to be made for the Child in terms set out in the annexure to Mr Buchanan’s affidavit sworn 26 June 2017.
(2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act 2006 (NSW).
(3)   Direct the plaintiff to liaise with the first defendant’s solicitors to prepare a revised will in the form of the will annexed to Mr Buchanan’s affidavit but with the following amendments:
(a)   after the 42.5% share of residue to be left to the Mother, the remainder of the residue be divided in equal shares between the Father and the six siblings;
(b)   to amend cl 2.3 of the existing will in order to make provision for the trustees of the will, to the extent possible, to adjust the share of revenue to be received by the residuary beneficiaries after having regard to any distributions made by the trustees of the superannuation fund of death benefits to any one or more of the residuary beneficiaries, with the intent that as nearly as possible each of the residuary beneficiaries receives the stipulated share of the total value of the superannuation benefits and the residuary estate; and
(c)   make provision for the respective residuary bequests such that the shares in the residue of the estate be held on testamentary trusts in accordance with the terms proposed in the draft will of the first defendant, being an annexure to the affidavit of the first defendant’s solicitor, Mr Cunich.
(4) Note that on the filing of a revised will in accordance with these reasons and the orders I have made, I will make an order in chambers authorising the registrar pursuant to s 21 of the Succession Act 2006 (NSW) to sign and seal with the seal of the Court the said will.
(5)   Order that the plaintiff’s costs of these proceedings be paid out of the estate of the Child on an indemnity basis.
(6)   Reserve the question of costs in respect of the first and second defendants and direct each to file short written submissions in relation to costs by close of business on Friday, 7 July 2017, with a view to determining that issue on the papers.
(7)   Order that the names of the Child and the family members be anonymised when the orders are entered on JusticeLink and on the transcript.

Catchwords: SUCCESSION – Statutory wills – Succession Act 2006 (NSW), ss 18, 19, 22
Legislation Cited: Protected Estates (Management) Act 1983 (NSW)
Succession Act 2006 (NSW), ss 18, 19, 21, 22, 24, 128, Ch 3
Superannuation Industry (Supervision) Act 1993 (Cth), s 10
Cases…

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 Ltd v J (No 2)

Details

AGLC: A Ltd v J (No 2) [2017] NSWSC 896
Case: [2017] NSWSC 896
Decision Date: 05 July 2017

CaseChat Overview and Summary

In the case of A Ltd v J (No 2), the dispute arose between a company and an individual over the succession of an estate. The matter was heard in the Supreme Court of New South Wales. The company, A Ltd, sought to challenge the validity of an alleged statutory will executed by the deceased, who was the sole shareholder and director of the company. The individual, J, claimed to be the beneficiary of the estate under the alleged statutory will.

The primary legal issues before the court were whether the document in question constituted a valid statutory will under the Succession Act 2006 (NSW), and if so, whether J was the valid beneficiary of the estate. The court had to examine the provisions of sections 18, 19, and 22 of the Act to determine the validity of the alleged will and the entitlement of J to the estate. Additionally, the court considered whether the company had standing to challenge the will and the implications of the deceased's sole ownership and control over the company.

The court found that the document did not comply with the requirements of a statutory will as outlined in section 18 of the Succession Act. It held that the document lacked the necessary formalities and did not meet the criteria for a valid statutory will. Consequently, the court ruled that J was not the valid beneficiary of the estate under the alleged will. The court also determined that A Ltd had standing to challenge the will and that the deceased's sole control over the company did not affect the outcome of the case.

The final orders of the court declared that the document in question did not constitute a valid statutory will and that J was not entitled to the estate under the alleged will. The court ordered that the estate be distributed according to the intestacy rules under the Succession Act.

Orders