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 to the present case:

“In such a case the Court may be satisfied as to what the incap-acitated person is ‘reasonably likely’ to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person’s testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances.”

8 Mr McCosker now proposes a statutory will which:

– appoints him as executor if he survives Ms Crawley for thirty days;

– gives a bequest to the charity named in the 1997 will;

– gives the residue of the estate to him, provided that he survives Ms Crawley for thirty days.

9 On 17 May 2010, I gave leave to Mr McCosker pursuant to s 19(1) of the Act, to make this application. I then had regard to the medical evidence as to Ms Crawley’s testamentary capacity, Mr McCosker’s relationship to Ms Crawley, and to the other evidence filed in relation to the matters required by s 19. However, I did not then proceed to make a final order under s 18 because I was not satisfied by the evidence, as it then stood, that the proposed will was “reasonably likely to be one that would have been made by [Ms Crawley] if she had testamentary capacity”: s 22(b). In particular, I was not satisfied, as the evidence then stood, that it was reasonably likely that Ms Crawley would have given the whole of her estate to Mr McCosker when, in her 1997 will, she had given him a relatively small bequest equal in amount to that which she gave to the charity.

10 Further evidence has now been filed by Mr McCosker. The charity has been served with the Summons and all affidavits but has declined to appear. In the light of the evidence as it now stands, I am satisfied that:

– Mr McCosker had a close family association with Ms Crawley while her sister, Mrs McCosker, was alive and Mr McCosker has actively managed Ms Crawley’s affairs for more than ten years;

– Mr Crawley’s 1997 will shows that she regarded the only persons having a claim on her testamentary bounty as her sisters and Mr McCosker and that she favoured no charitable purposes save those of the single named charity;

– it is reasonably likely that Ms Crawley did not make greater provision for Mr McCosker in her 1997 will because she believed that her sister, Mrs McCosker, who was considerably younger, would survive her and that Mr McCosker would benefit from his wife’s inheritance;

– it is reasonably likely that Ms Crawley intended to dispose effectively of the whole of her estate by will and it is reasonably likely that she believed that her 1997 will would achieve that result, having regard to the fact that she was much older than her sisters;

– it is reasonably likely that if Ms Crawley now had testamentary capacity, she would not wish her estate to go to the Crown but would wish Mr McCosker, as the only person with whom she has a surviving close family relationship, to take the major benefit, with an increased benefit to the charity to reflect the present value of the gift made by her 1997 will and a gift over of the residue to the charity if Mr McCosker does not survive her by thirty days.

11 The proposed will now contains such provisions and I am, therefore, satisfied that the Court should make a final order under s 18(1)(a) approving that will.

12 I make orders in terms of the Short Minutes of Order.

– oOo –