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Re MP's Statutory Will

Re MP's Statutory Will

Case [2019] NSWSC 331 15 April 2019

Testamentary Capacity

Statutory Wills

Assessment of Intention

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re MP’s Statutory Will [2019] NSWSC 331
Hearing dates: 29 March and 2 April 2019
Decision date: 15 April 2019
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Application for Statutory Will dismissed

Catchwords: SUCCESSION – Statutory Wills – Assessment of actual, or presumed, intention of person lacking testamentary capacity – No clear intention – Application for statutory will dismissed.
Legislation Cited: Civil Procedure Act 2005 NSW, section 98
NSW Trustee and Guardian Act 2009 NSW
Succession Act 2006 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: AB v CB [2009] NSWSC 680
Banks v Goodfellow (1870) LR 5QB, 549
Boulton v Sanders [2004) 9 VR 495; [2004] VSCA 112
Briginshaw v Briginshaw (1938) 60 CLR 336
Burns v Estate of Burns (a Protected Person) [2013] NSWSC 1550; 11 ASTLR 362
CCR v PS (No. 2) (1986) 6 NSWLR 62
Ex parte Whitbread in the matter of Hinde , a Lunatic (1816) 2 MER 99; 35 ER 878
GAU v GAV [2016] 1 Qd R1; [2014] QCA 308
Gertsch v Roberts (1993) 35 NSWLR 631
Holt v Protective Commissioner (1993) 31 NSWLR 227
In the Will of Jane [2011] NSWSC 624
Osborne v Smith (1960) 105 CLR 153
Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377
Protective Commissioner v D (2004) 60 NSWLR 513
Re B (Court of protection: notice of proceedings) [1987] 1 WLR 552
Re Fenwick (2009) 76 NSWLR 221; [2009] NSWSC 530
Re Fulop, deceased (1987) 8 NSWLR 679
Re K’s Statutory Will (2018) 96 NSWLR 69
Re the Will of Bridget [2018] NSWSC 1509
Re Will of Jane [2011] NSWSC 624
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218
W v H [2014] NSWSC 169
Waind v Hill & National Employers Mutual General Association Limited [1978] 1 NSWLR 372
Texts Cited: HS Theobald ,The Law relating to Lunacy (London, 1924) , p. 382
Category: Principal judgment
Parties: Plaintiff: Grandson of Protected Person by her daughter
First Defendant: Daughter of Protected Person in her personal capacity
Second Defendant: Son of Protected Person in his personal capacity
Third Defendants: Daughter and Son of Protected Person in their capacity as joint managers of her protected estate
Fourth Defendant: Protected Person, by her Tutor
Representation:
Counsel:
Plaintiff: C Birch SC with J Mack
First Defendant: H Morrison
Second Defendant: L Ellison SC
Third Defendants: J Needham SC
Fourth Defendant: MK Meek SC
NSW Trustee: J Brouwer, Solicitor
Solicitors:
Plaintiff: Dukes Lawyers
First Defendant: David Landa Stewart
Second Defendant: Glass Goodwin
Third Defendants: Brown Wright Stein
Fourth Defendant: MJM Lawyers
NSW Trustee: J Brouwer, Solicitor

File Number(s): 2018/00373426

Judgment

INTRODUCTION

By a summons filed on 4 December 2018 and amended on 20 December 2018, the plaintiff applies to the Court: (a) pursuant to section 19 of the Succession Act 2006 NSW, for leave to apply for a court authorised will for MP; and (b) subject to a…

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 MP's Statutory Will

Details

AGLC: Re MP's Statutory Will [2019] NSWSC 331
Case: [2019] NSWSC 331
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the case before the court, the executor of the estate of MP sought to have a statutory will declared. The dispute arose as MP was believed to have been without testamentary capacity at the time of their death. The court was tasked with determining whether a statutory will could be applied for and granted in such circumstances. The legal issues at hand were whether MP's actions and communications could be interpreted as an expression of testamentary intention, and whether those intentions were clear enough to warrant the issuance of a statutory will.

The court examined MP's conduct and statements, finding that while there were indications of certain preferences, there was no clear and unequivocal testamentary intention expressed. The decision hinged on the interpretation of MP's communications and actions, which the court found to be ambiguous. Given the lack of a clear expression of testamentary intention, the court ruled that a statutory will could not be granted. The court held that for a statutory will to be valid, the deceased's intentions must be ascertainable with a high degree of certainty, which was not the case here.

As a result, the application for a statutory will was dismissed. The court's reasoning underscored the importance of a clear testamentary intention in the context of statutory wills, especially where the deceased's capacity is in question. The decision emphasised that without a clear and unequivocal expression of the deceased's wishes, a statutory will could not be applied for.

Orders