Re LS

[2017] NSWSC 1667

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Re LS [2017] NSWSC 1667
Hearing dates:	24 November 2017
Date of orders:	24 November 2017
Decision date:	30 November 2017
Jurisdiction:	Equity - Duty List
Before:	Rein J
Decision:	See [19].
Catchwords:	EQUITY – Urgent duty application Friday afternoon by the de facto partner of LS, a person without testamentary capacity, for the making of a statutory will pursuant to division 2 of the Succession Act 2006 (NSW) (“the Act”) – LS on life support, anticipated termination of life support following Monday – Matters to be taken into account by s 19 and s 22 and, in particular, consideration of the notice requirements of s 22(e) of the Act.
Legislation Cited:	Succession Act 2006 (NSW)
Cases Cited:	Scott v Scott [2012] NSWSC 1541
Category:	Principal judgment
Parties:	(Plaintiff)
Representation:	Counsel: L. Ellison SC (Plaintiff)   Solicitors: Unsworth Legal (Plaintiff)
File Number(s):	2017/356625

Judgment

1. On Friday 24 November 2017 an urgent application was made by the Plaintiff, represented by Mr L. Ellison SC, in connection with a proposed Will for the Plaintiff’s de facto partner of whose name I shall anonymise as “LS”.

2. LS, who is 54 years of age, suffered an aneurysm and stroke earlier this month and is currently unconscious and on life support. Her doctors have expressed the view that LS has no realistic prospect of recovery and plans are under way to terminate life support on Monday 27 November 2017, by which time LS’s two sisters, who reside in New Zealand, will be present.

3. From the Plaintiff’s affidavit and her oral evidence, the following pertinent facts can be gleaned:

1. LS and the Plaintiff commenced a relationship in 1997 and in 2000 went through a ceremony that was described as a marriage, although not one recognised as matters presently stand under the Marriage Act 1961 (Cth).

2. The Plaintiff has two children who have lived with the Plaintiff and LS since the Plaintiff and LS commenced their de facto relationship in 1997. They are now adults.

3. LS is originally from New Zealand, where her mother, father and two sisters reside. LS’s mother, who is 80 years of age, and father separated long ago and have no contact with each other. LS has regular contract with her mother and sisters, but has had very little contact with her father, who is 86 years of age, suffers from bipolar disorder and other mental conditions.

4. Earlier this year the Plaintiff required an operation and was concerned as to the outcome and she and LS discussed their respective testamentary wishes and dispositions. LS said that she would like the plaintiff to obtain LS’s half interest in a property on the South Coast and the residue of her NSW assets, and her mother and sisters to receive all of her assets in New Zealand.

5. LS holds New Zealand assets worth approximately $800,000 and NSW assets worth approximately $500,000 (including the half share in the South Coast property).

6. LS’s sisters will be arriving in Australia on Monday – the Plaintiff has requested the hospital not to turn off life support for LS before they arrive. LS’s mother does not want to attend at the hospital, but will arrive for the funeral which is expected to take place on Thursday next.

7. LS has no children of her own.

8. One of the Plaintiff’s sons suffers from a number of medical conditions and is on a disability pension.

9. There is no evidence of any prior will of LS.

4. The Will which the Plaintiff seeks to have made:

1. Gives all of LS’s New Zealand real property to LS’s mother and sisters;

2. Gives $50,000 to each of the Plaintiff’s sons out of the New Zealand assets;

3. Gives the residue of LS’s assets to the Plaintiff.

5. It needs to be borne in mind that if LS dies intestate the Plaintiff will, under NSW law, inherit all of LS’s NSW assets and possibly all her New Zealand assets as well: see s 104 and s 111 of the Succession Act 2006 (NSW) (“the Act”).

6. Sections 18 – 23 of the Act deal with what has come to be known as statutory wills. Section 19 sets out the information which the Court is required to have and s 22 provides matters as to which the Court must be satisfied.

7. Sections 19(2)(a) – (f), (h) and (k) are all satisfied.

8. In relation to s 19(2)(g), the likelihood is that LS has not made an earlier will.

9. In relation to s 19(2)(h), the person who might be entitled to claim on the intestacy is the Plaintiff.

10. In relation to s 19(2)(i) I have referred to the sons of the Plaintiff, who have lived with the Plaintiff and LS for many years.

11. In relation to s 19(2)(j), the Plaintiff’s sons are the persons who might be able to apply, but they are aware of the Plaintiff’s proposed application and support it.

12. There is no evidence of any charitable purpose gift.

13. I am satisfied that LS is incapable of making a will (see: s 22(a)).

14. There is reason to believe that the proposed Will is one which LS would have made if she had testamentary capacity (see: s 22(b)).

15. I am satisfied that the Plaintiff is the appropriate person to apply for the order to be made (see: s 22(d)) and, subject to s 22(c), that it is appropriate for the orders to be made.

16. Section 22(e) is in the following terms:

The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

17. Neither LS’s mother nor her sisters have been informed of this application. There is evidence that LS’s mother is not, due to her upset at her daughter’s condition, in a position to receive information about the proposed Will. The Plaintiff did say candidly that she thought LS’s sisters, if informed of the application, might think that the Plaintiff was trying to make a “grab” for LS’s money. I accept that generally speaking it would be necessary for a person’s mother and siblings to be informed for there to be ‘adequate steps’, but I have had regard to five important matters:

1. LS has lived in a de facto relationship with the Plaintiff for 20 years.

2. The proposed Will not only does not exclude LS’s mother and sisters, it positively provides that they are to receive more than half of the net assets of LS. Thus the persons who might have reason to expect a gift or benefit will have that expectation met.

3. If the Will is not made there is a risk to the mother and sisters that they will receive no benefit from LS’s estate.

4. The person with the most interest in the application is the Plaintiff herself, and the persons next interested are her sons.

5. The matter is highly urgent and ‘adequacy’, in my view, is context dependant.

18. I think it is of crucial significance that the interests of LS’s mother and LS’s sisters are actually advanced, rather than adversely affected, by the proposed Will and, therefore, that if they were appraised of the details of the application they would have reason to support, rather than oppose, it. Some support for this approach can be derived from the decision of Lindsay J in Scott v Scott [2012] NSWSC 1541, in which his Honour said:

Minor beneficiaries named in Marjorie's 2003 Will (namely, her godchildren, the RSPCA and Ascham) have not been served with notice of the application. Nevertheless, I am satisfied, for the purpose of s 22(e) of the Succession Act, that, provided the modest provision made for them in the 2003 Will is maintained, they have no legitimate interest in the present application so as, by their absence, to impede its consideration.

19. I, therefore, not without some hesitation, have concluded that it is appropriate for the order sought to be made.

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Amendments

01 December 2017 - Removal of Plaintiff's name.

Decision last updated: 01 December 2017