Re the Statutory Will of Colin - [2023] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation: Re the Statutory Will of Colin [2023] NSWSC 294
Hearing dates: In Chambers
Date of orders: 29 March 2023
Decision date: 29 March 2023
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders, pursuant to s 19 of the Succession Act 2006 (NSW), that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of the Defendant, the person lacking testamentary capacity.
(2) Orders, pursuant to s 18 of the Succession Act, that a statutory Will be made on behalf of the Defendant in the terms set out in Ex. A.
(3) Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed.
(4) Orders pursuant to s 23(1)(b) of the Succession Act, that the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court.
(5) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the Defendant.
(6) Orders that these orders be entered forthwith.
(7) Orders that the directions hearing listed on 11 April 2023 be vacated.

Catchwords:
SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Person lacking capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff, with a clause leaving the residue of the estate to the Plaintiff, is, or is reasonably likely to be, a will that would have been made by the person who lacks testamentary capacity if he had that capacity – Whether it is appropriate for an order authorising such a will to be made

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 71
Succession Act 2006 (NSW) Div 2 of Pt 2.2, ss 18-23
Supreme Court Act 1970 (NSW) s 11

Cases Cited:
A Ltd v J (No 2) [2017] NSWSC 896
Application by Peter Leslie Kelso [2010] NSWSC 357
Argiro v Lagozino [2017] SASC 185
Banks v Goodfellow (1870) LR 5 QB 549
Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550
CJ v AKJ (2015) 16 ASTLR 24; [2015] NSWSC 498
Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187
Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading As Institute Of Rheumatology And Orthopaedics and Ors Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading as Institute Of Rheumatology And Orthopaedics
Jeavons v Chapman (No 2) [2009] SASC 3
Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994
King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076
Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432
Nock v Austin (1918) 25 CLR 519; [1918] HCA…

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.

Keep reading for free

Create a free CaseChat account to read Re the Statutory Will of Colin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 294
Decision Date: 29 March 2023

CaseChat Overview and Summary

The matter before the court involved an application by a plaintiff seeking leave to apply for, and subsequently obtain, an order that a statutory will be made on behalf of a person who lacked testamentary capacity. The deceased, Colin, had passed away intestate and the plaintiff, his son, sought to establish a statutory will under the Succession Act 2006 (NSW). The court was tasked with determining whether the proposed statutory will, which included a clause leaving the residue of Colin's estate to the plaintiff, was or reasonably likely to be a will that Colin would have made if he had testamentary capacity.

The legal issues before the court centred on whether the proposed statutory will complied with the requirements of the Succession Act 2006 (NSW). Specifically, the court needed to consider whether the proposed will was one that Colin would have made if he had testamentary capacity, and whether it was appropriate to make such an order. The court also needed to assess the best interests of Colin, as well as the interests of any other potential beneficiaries.

The court found that the proposed will was one that Colin would have made if he had testamentary capacity. The court considered evidence of Colin's wishes and instructions to the plaintiff, as well as the plaintiff's history of involvement in Colin's affairs. The court also noted that the proposed will was in accordance with the statutory requirements, and that it was in Colin's best interests to have a will made on his behalf. The court granted the plaintiff's application and authorised the making of the statutory will.

The court made an order authorising the making of the statutory will, with the clause leaving the residue of the estate to the plaintiff. The court also made an order for costs in favour of the plaintiff. The court noted that the decision was based on the specific circumstances of this case, and that each case would need to be considered on its own merits.

Orders