Crawley, Re the Estate of - [2010] NSWSC 618

CITATION: Crawley, Re the Estate of [2010] NSWSC 618

HEARING DATE(S): 7 June 2010

JUDGMENT DATE :
9 June 2010

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Palmer J

DECISION: Statutory will approved.

CATCHWORDS: SUCCESSION – STATUTORY WILL – “Lost capacity case” – whether reasonably likely that incapacitated person would have intended estate to vest in Crown as bona vacantia – whether reasonably likely that she would have made dispositions of proposed will.

LEGISLATION CITED: Succession Act 2006 (NSW) – s 18, s 19, s 22

CATEGORY: Principal judgment

CASES CITED: Fenwick, Re [2009] NSWSC 530

PARTIES: Richard Anthony Francis McCosker (Plaintiff)

FILE NUMBER(S): SC 2010/098832

COUNSEL: Ms R. Kako (Plaintiff)

SOLICITORS: Shanahans Solicitors (Plaintiff)

2010/099832 Re Estate of Crawley

JUDGMENT

9 June , 2010

1 This is an application under s 18 Succession Act 2006 (NSW) that a statutory will be made for Ms E.J. Crawley. The applicant is Ms Crawley’s brother-in-law, Mr McCosker.

2 For reasons that will appear, I am satisfied that there is no person who ought to made a defendant in the proceedings and that the only other party which may be interested in the application has been given due notice of it.

3 Ms Crawley is now ninety-three years of age. She has never married and has never had children. She has no parents, siblings, aunts or uncles who are living. She presently resides in a nursing home. An examination conducted by a psychiatrist in March this year shows, without any doubt, that Ms Crawley has severe dementia. There could be no question that she has irretrievably lost testamentary capacity, so that the requirement of s 22(a) of the Act is satisfied.

4 Mr McCosker was married to Ms Crawley’s sister, Ethel, who died in 2009. Mr McCosker was appointed as Ms Crawley’s attorney under a General Power of Attorney granted in 1997 and since then he has managed all her financial affairs.

5 Ms Crawley made a will in February 1997. It was prepared by a solicitor and there is no suggestion in the evidence that Ms Crawley lacked testamentary capacity at that time.

6 In her will, Ms Crawley appointed her sisters, Ellen and Ethel, as joint executors, gave $500 each to Mr McCosker and a named charity and gave the residue to Ellen and Ethel. There was no gift over in case, as has happened, her sisters pre-deceased her. Accordingly, if Ms Crawley were to die without a statutory will being made, her estate would pass on intestacy and, there being no next of kin who could take, it would vest in the Crown as bona vacantia.

7 This is a “lost capacity” case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed or is incapable of expressing, any testamentary intention to deal with the changed circumstances: see Re Fenwick [2009] NSWSC 530, at [160]. In that case I made some remarks which are apposite…

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.

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Details

Case: [2010] NSWSC 618
Decision Date: 9 June 2010

CaseChat Overview and Summary

The case of Crawley, Re the Estate of, involved the determination of the estate of a deceased person who had not made a formal will. The dispute centred around whether the estate should vest in the Crown as bona vacantia or whether a statutory will proposed by the executor should be approved. The court was tasked with assessing whether it was reasonably likely that the deceased, who had lost capacity, would have intended for her estate to vest in the Crown or if she would have made the dispositions outlined in the proposed will.

The primary legal issues the court had to decide were whether the deceased would have intended her estate to vest in the Crown as bona vacantia given her circumstances, and whether it was reasonably likely that she would have made the dispositions as proposed in the statutory will. This involved examining the deceased's past expressions of wishes, her values, and the likelihood of her making specific dispositions had she retained capacity.

The court considered various factors, including the deceased's age, her religious beliefs, and her relationships. It was determined that there was no clear indication that the deceased would have intended her estate to vest in the Crown. Furthermore, the court found that it was reasonably likely that the deceased would have made the dispositions proposed in the statutory will, based on her expressed wishes and values. Consequently, the court approved the proposed will, rejecting the claim that the estate should vest in the Crown. The court's decision was based on a detailed analysis of the evidence and the application of relevant statutory criteria.

Orders