Re M's Codicil - [2018] NSWSC 936

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 NSW
Cases 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 1711
Texts 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 Person
Representation:
Counsel:
Applicant: P Blackburn-Hart SC and R Kako
First & Second Respondents: P Greenwood SC and S Clemmett
Third Respondent: G Mackey, solicitor
Solicitors:
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

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.
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.
The application was made by a notice of motion filed on 16 April 2018, amended on 8 June 2018.
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.
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.
The application arose in circumstances in which there had been (and, absent a court-authorised codicil, there might have continued to be) uncertainty as…

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 M's Codicil

Details

AGLC: Re M's Codicil [2018] NSWSC 936
Case: [2018] NSWSC 936
Decision Date: 19 June 2018

CaseChat Overview and Summary

The case of Re M's Codicil involved a dispute over the validity of a codicil to an existing will. The dispute arose when the executrix sought court authorisation to validate the codicil. The testator, who had passed away, was found to have lacked the necessary mental capacity to make the codicil at the time it was executed. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the codicil could be authorised under the Succession Act 2006, and if so, what principles should be applied in making such a decision.

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