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Re K's Statutory Will

Re K's Statutory Will

Case [2017] NSWSC 1711 3 November 2017

Statutory Will

Incapacitated Minor

Discretion to Approve Specific Terms

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re K’s Statutory Will [2017] NSWSC 1711
Hearing dates: 3 November 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Order, pursuant to section 18 of the Succession Act 2006 NSW, that a Will be authorised to be made on behalf of an incapacitated minor, together with consequential relief

Catchwords: SUCCESSION – Wills, Probate and Administration – Statutory will – Minor nil capacity case – Statutory powers informed by protective jurisdiction – Consideration of benefit to, and interests of, incapacitated minor – Operation in context of statutory criteria – Discretion to approve “specific terms” of a will – How to be exercised
Legislation Cited: Child Support (Assessment) Act 1989 Cth
Civil Procedure Act 2005 NSW
NSW Trustee and Guardian Act 2009 NSW
Succession Act 2006 NSW
Cases Cited: A Limited v J (No. 2) [2017] NSWSC 896
A Limited v J [2017] NSWSC 736
Banks v Goodfellow (1870) LR 5 QB 549
GAU v GAV [2016] 1 QDR 1
In Re An Incapable Person D [1983] 2 NSWLR 590
Protective Commissioner v D (2004) 60 NSWLR 513 Griffin v Union Trustee Co of Australia Limited (1947) 48 SR (NSW) 360; 65 WN (NSW) 5
Re AAA; Report on a protected person’s attainment of the age of majority [2016] NSWSC 805
Re Fenwick (2009) 76 NSWLR 22
Re Fenwick; Application of JR Fenwick; Re “Charles” (2009) 76 NSWLR 22
Re Will of Jane [2011] NSWSC 624
Read v Carmody [1998] NSWCA 182
Secretary, Department of Family and Community Services v K [2014] NSWSC 1065
Snelgrove v Swindells [2007] NSWSC 868
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Australian Executor Trustees Limited
First Defendant: Mother of the Incapacitated Minor, K
Second Defendant: Father of K
Representation:
Counsel:
Plaintiff: RD Williams
First Defendant: S Chapple
Second Defendant: No appearance
Solicitors:
Plaintiff: Unsworth Legal
First Defendant: Keypoint Law
Third Defendant: No appearance

File Number(s): 2017/00221075

Judgment

INTRODUCTION

On 3 November 2017 I heard, and determined, an application (made under Division 2 of Part 2.2, sections 18-26, of the Succession Act 2006 NSW) for an order authorising a will to be made on behalf of an incapacitated minor (a 7 year old boy), K.
As a result of an award of personal injury compensation in other proceedings (in the Common Law Division of the Court), K is possessed of a substantial estate. Substantial though that estate is, it must sustain him for a life expected to be of normal duration.
The estate is managed by the plaintiff (a licensed trustee company), as a protected estate governed by the NSW Trustee and Guardian Act 2009 NSW, pursuant to orders made (in separate proceedings in the Protective List of the Court’s Equity Division) under section 41 of the Act.
In discharge of its functions under the NSW Trustee and Guardian Act 2009, as monitor of private protected estate managers, the NSW Trustee authorised the…

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 Re K's Statutory Will

Details

AGLC: Re K's Statutory Will [2017] NSWSC 1711
Case: [2017] NSWSC 1711
Decision Date: 03 November 2017

CaseChat Overview and Summary

The case of Re K's Statutory Will involved a minor, K, who had been declared by the court to be of nil capacity. The dispute centred around the construction of a statutory will for K under the Succession Act 2006 (NSW). The court had to decide on the terms of the will, considering the statutory criteria and the protective jurisdiction of the court. The decision was made in the Supreme Court of New South Wales.

The primary legal issue before the court was how to exercise its discretion in approving the "specific terms" of a statutory will for an incapacitated minor. The court had to consider the statutory criteria set out in the Succession Act 2006 (NSW) and the overarching principle of the minor's best interests. The court also needed to balance the statutory provisions with its protective jurisdiction over minors. The central question was whether the court could approve specific terms of the statutory will that might not strictly adhere to the statutory criteria but were deemed to be in the minor's best interests.

In determining the appropriate terms of the statutory will, the court applied a holistic approach. It examined the statutory criteria, which included the benefit to and the interests of the minor. The court considered the minor's welfare, the financial implications of the proposed will, and the potential long-term consequences of the decision. The court's protective jurisdiction guided its analysis, ensuring that the minor's interests were paramount. Ultimately, the court exercised its discretion to approve specific terms of the statutory will that it believed were in the best interests of the minor, despite a strict interpretation of the statutory criteria.

The court's decision led to the approval of a statutory will that included specific terms tailored to the minor's unique circumstances. The court ordered that the statutory will be implemented, providing for the administration and distribution of K's estate in accordance with the approved terms. This decision underscored the importance of balancing statutory provisions with the protective jurisdiction of the court in cases involving incapacitated minors.

Orders