Supreme Court
New South Wales
Medium Neutral Citation: Re M’s Codicil [2018] NSWSC 936 Hearing dates: 15 and 19 June 2018 Date of orders: 19 June 2018 Decision date: 19 June 2018 Jurisdiction: Equity - Protective List Before: Lindsay J Decision: Orders made (under sections 18-19 of the Succession Act 2006 NSW) for a court-authorised codicil confirmatory of a codicil made by an incapacitated person but the subject of uncertainty as to its operation.
Catchwords: SUCCESSION – Wills, probate and administration – The making of a will – Court authorisation of a codicil – Testator without capacity – Uncertainty in existing testamentary instruments – Succession Act section 22 – Principles for consideration – Authorisation granted Legislation Cited: NSW Trustee and Guardian Act 2009 NSW
Civil Procedure Act 2005 NSW
Probate and Administration Act 1898
Succession Act 2006 NSW
Trustee and Guardian Act 2009
Uniform Civil Procedure Rules 2005 NSWCases Cited: CCR v PS (No. 2) (1986) 6 NSWLR 622
GAU v GAV [2016] 1 Qd R 1
Re K’s Statutory Will [2017] NSWSC 1711Texts Cited: - Category: Principal judgment Parties: Applicant: A Daughter of the Protected Person
First Respondent: A Son of the Protected Person
Second Respondent: A Son of the Protected Person
Third Respondent: A Protected PersonRepresentation: Counsel:
Solicitors:
Applicant: P Blackburn-Hart SC and R Kako
First & Second Respondents: P Greenwood SC and S Clemmett
Third Respondent: G Mackey, solicitor
Applicant: Stacks Heard McEwan
First & Second Respondents: Carneys Lawyers
Third Respondent: NSW Trustee & Guardian
File Number(s): 2015/00316557
JUDGMENT
INTRODUCTION : AN APPLICATION FOR A COURT-AUTHORISED CODICIL
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These reasons for judgment are published in support of orders made yesterday (19 June 2018) for the determination of an application, under Division 2 of Part 2.2 (sections 18-26) of the Succession Act 2006 NSW, that a “statutory will” (more accurately, a court-authorised codicil) be made on behalf of a 93-year-old widow who presently lacks testamentary capacity.
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The application was made in proceedings in which, on 6 October 2016, Hallen J made orders, under section 41 of the NSW Trustee and Guardian Act 2009 NSW, declaring the widow to be a person incapable of managing her affairs, and committing management of her estate to the NSW Trustee. The widow’s estate continues to be under protected estate management. She is a “protected person” within the meaning of section 38 of the Trustee and Guardian Act 2009.
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The application was made by a notice of motion filed on 16 April 2018, amended on 8 June 2018.
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The parties to the motion were the three children of the protected person (all adults) and, represented by the NSW Trustee as her tutor, the protected person herself.
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The applicant was the only daughter of the protected person. The first and second respondents were her brothers, the sons of the protected person. The protected person was designated the third respondent.
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The application arose in circumstances in which there had been (and, absent a court-authorised codicil, there might have continued to be) uncertainty as…
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- Re M's Codicil [2018] NSWSC 936
- Case
- [2018] NSWSC 936
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the codicil could be authorised under section 22 of the Succession Act and, if so, what principles should guide the court in authorising the codicil. The court needed to consider the principles established in previous case law, such as the need for clear and convincing evidence of the testator's intentions, and the potential consequences of authorising or not authorising the codicil. Additionally, the court had to consider the testator's mental capacity at the time of executing the codicil and whether the uncertainty in the existing testamentary instruments could be resolved by authorising the codicil.
In determining these issues, the court examined the evidence presented regarding the testator's mental capacity and the circumstances surrounding the execution of the codicil. The court found that the testator did not have the necessary capacity to make the codicil, but also recognised that authorising the codicil would resolve the uncertainty in the existing testamentary instruments and align with the testator's apparent intentions. The court concluded that authorising the codicil was in the best interests of the estate and the beneficiaries, and granted the application for authorisation under section 22 of the Succession Act.
The final orders of the court authorised the codicil to be added to the existing will, thereby resolving the uncertainty and effectuating the testator's apparent intentions. The court's decision was guided by the principles established in previous case law, and the court's consideration of the testator's mental capacity and the potential consequences of authorising or not authorising the codicil.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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