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Re The Will of Alexa

Re The Will of Alexa

Case [2020] NSWSC 560 14 May 2020

Testamentary Capacity

Statutory Will

Incapacitated Person

Financial Manager

Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re The Will of Alexa [2020] NSWSC 560
Hearing dates: In Chambers and on the papers
Date of orders: 14 May 2020
Decision date: 14 May 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(1) Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.
(2) Orders, pursuant to s 19 of the Succession Act 2006 (NSW) (“the Act”), that the Plaintiff have leave to apply for an order under s 18 of the Act.
(3) Orders pursuant to s 18 of the Act, that a will be made on behalf of Alexa, the person lacking testamentary capacity, in the form set out in Ex SW1 (“the Statutory Will”).
(4) Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal with the seal of the Court the Statutory Will, being Ex SW 1.
(5) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alexa.
(6) Orders that these orders shall be entered forthwith.

Catchwords: SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Incapacitated person has never had 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 who is the mother, and the principal beneficiary, named in the Will, with balance being divided between other family members is, or is reasonably likely to be, a will that would be made by the person who lacks testamentary capacity if she had that capacity – Whether it is appropriate for an order authorising such a will to be made – Financial manager of the person lacking testamentary capacity not a party to the proceedings but supports and approves of the terms of the proposed statutory Will as do all other family members
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
NSW Trustee and Guardian Act 2009 (NSW), s 38
Succession Act 2006 (NSW), ss 18, 19, 20, 21, 22, 23, 24, 25, 57, 128, 129, Sch 1 cl 3
Cases Cited: A Ltd v J (No 2) [2017] NSWSC 896
AB v CB [2009] NSWSC 680
Application by Peter Leslie Kelso [2010] NSWSC 357
Argiro v Lagozino [2017] SASC 185
Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836
Estate Cockell; Cole…

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 The Will of Alexa

Details

AGLC: Re The Will of Alexa [2020] NSWSC 560
Case: [2020] NSWSC 560
Decision Date: 14 May 2020

CaseChat Overview and Summary

In the case of Re The Will of Alexa, the deceased, Alexa, had never possessed testamentary capacity, and her mother, the plaintiff, sought leave to apply for, and subsequently obtain, an order to authorise the creation of a will on her behalf. The deceased had no other family members with whom she had any meaningful relationship. The defendants in the case were the Public Trustee of New South Wales, who was appointed as the deceased's financial manager, and the executors of the deceased's previous will, who were not parties to the proceedings. The court was required to determine whether the proposed statutory will, which the plaintiff had drafted and which named her as the principal beneficiary, was one that Alexa would likely have made if she had testamentary capacity. The court also needed to decide whether it was appropriate to grant an order authorising the creation of the proposed statutory will.

The court examined the statutory framework provided by the Succession Act 2006 (NSW), particularly sections 18, 19, and 22. The court considered the evidence presented regarding Alexa's wishes, her relationships, and her overall circumstances. The court was satisfied that the proposed will reflected the wishes of the deceased, as reasonably ascertainable, and was likely to be the will that she would have made if she had testamentary capacity. The court noted that the deceased's financial manager, along with all other family members, supported the terms of the proposed statutory will. Given these factors, the court concluded that it was appropriate to grant the order authorising the creation of the proposed statutory will.

Consequently, the court granted the plaintiff's application, authorising the creation of a will in accordance with the terms proposed by the plaintiff. The will names the plaintiff as the principal beneficiary, with the balance of the estate to be divided among other family members. The court's decision was based on the evidence presented and the statutory requirements outlined in the Succession Act 2006 (NSW).

Orders