Re LS

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.