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

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

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).

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.

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.

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.

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).

LS’s sisters will be arriving in Australia…

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 LS

Details

AGLC: Re LS [2017] NSWSC 1667
Case: [2017] NSWSC 1667
Decision Date: 30 November 2017

CaseChat Overview and Summary

The de facto partner of LS, a person without testamentary capacity, applied for the making of a statutory will pursuant to the Succession Act 2006 (NSW). The application was made on a Friday afternoon, with the intention that life support be terminated on the following Monday. The case was heard in the Supreme Court of New South Wales. The partner sought the statutory will to ensure that LS’s wishes were legally binding and that there would be no ambiguity regarding the distribution of her estate after her anticipated death.

The court had to determine whether the statutory will could be granted in such a time-sensitive scenario, considering the statutory provisions of the Act. A central issue was the compliance with section 22(e) of the Act, which mandates that notice must be given to certain individuals. Given the urgency of the situation, the court needed to assess whether the notice requirement could be reasonably fulfilled within the short timeframe provided. The court also considered other factors under sections 19 and 22 of the Act, such as LS’s known wishes and the welfare of any potential beneficiaries.

In deciding the matter, the court acknowledged the urgency of the situation and the imminent termination of life support. It found that the notice requirements of section 22(e) could not be reasonably met within the available time. However, considering the compelling circumstances and the welfare of LS, the court exercised its discretion to waive the notice requirement. The court determined that granting the statutory will was in the best interest of LS and would ensure her wishes were respected. The application was ultimately successful.

The court ordered that a statutory will be made in accordance with the application, reflecting LS’s wishes. The will was to be executed under the authority granted by the court, and the partner was to act as the executor. This decision was based on the balance of urgency, the welfare of LS, and the need to respect her known wishes as closely as possible under the circumstances.

Orders