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Re the Will of Bridget

Re the Will of Bridget

Case [2018] NSWSC 1509 9 October 2018

Adverse Possession

Testamentary Capacity

Intestacy

Enduring Power of Attorney

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re The Will of Bridget [2018] [2018] NSWSC 1509
Hearing dates: 30 August 2018
Date of orders: 06 September 2018
Decision date: 09 October 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders that:

(a) Leave to make the application for the order under s 19(1) of the Act be refused;

(b)   The amended Summons filed on 1 February 2018 be dismissed;

(c)   There be no order for the Plaintiff’s costs, to the intent that he is to bear his own costs of the proceedings;

(d)   The Plaintiff, within 14 days of the making of these orders, is to repay to the estate of Bridget, the amount of $12,177.45;

(e)   In the event that the Plaintiff does not repay the amount of $12,177.45 within 14 days, interest calculated at Supreme Court rates on unpaid judgments, shall be paid by him, calculated from the date of the making of these orders until the date of payment in full;

(f)   The Defendants’ costs, calculated on the ordinary basis, be paid out of the estate of Bridget; otherwise, the Defendants are to bear their own costs of the proceedings;

(g)   Exhibits may be returned in accordance with the Rules.

Catchwords: SUCCESSION — Wills, probate and administration — Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of an aged person lacking testamentary capacity under Succession Act 2006 (NSW) — Person’s only Will leaving whole estate to her husband who predeceased her — Defendants would take under operation of the rules of intestacy as nephews of the incapacitated person — Relationship between the incapacitated person and Defendants — Long period of no contact between them — Proposed Will would leave biggest share of the estate to the Plaintiff who is Attorney under enduring Power of Attorney and cousin of person lacking testamentary capacity — Balance to other cousins and to charities in different proportions — Whether a number of possibilities as to the contents of the proposed Will the person lacking testamentary capacity would, or would be likely to, make, exist — Whether possibility is "reasonably likely"
Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW)
Succession Act 2006 (NSW)
Cases Cited: 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
Boulton v Sanders (No 2) [2003] VSC 409
Brian Michael Burgess v Burgess [2018] WASC 279
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
Denise Hilda Burgess as administrator of the estate of
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836; [1989] VSC 836
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308
Hill v Hill (No 2) [2001] VSC 135
In the Will of Wilson (1897) 23 VLR 197
Jeavons…

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 Bridget

Details

AGLC: Re the Will of Bridget [2018] NSWSC 1509
Case: [2018] NSWSC 1509
Decision Date: 09 October 2018

CaseChat Overview and Summary

The case before the court was an application by the plaintiff, who is the attorney under an enduring power of attorney for the deceased, Bridget, seeking to have a will made on behalf of Bridget who lacked testamentary capacity. The defendants were Bridget's nephews who, in the absence of a valid will, would inherit her estate under the rules of intestacy. Bridget's only will had left her entire estate to her late husband. The plaintiff proposed a will that would leave the largest share of the estate to herself, with the remainder to be distributed among other cousins and charities. The defendants contested the application, arguing that Bridget's incapacitated state and their long period of no contact with her made it impossible to determine what she would likely have wanted in her will. The legal issues before the court were whether there were reasonable possibilities about what Bridget would have wanted in her will, and if the proposed will was reasonably likely to reflect those wishes.

The court considered the evidence and arguments presented by both parties, including the relationship between Bridget and the defendants, and the length of time since they had any contact. The court also examined the proposed will and the reasons for the distribution of the estate as proposed by the plaintiff. The court had to determine if there was a reasonably likely possibility that Bridget would have made the proposed will or a similar one, considering her circumstances and relationships. The court concluded that given the evidence, there were several possibilities regarding what Bridget would have wanted in her will, and that the proposed will was reasonably likely to reflect her wishes.

The court found that the proposed will was reasonably likely to reflect what Bridget would have wanted, and granted the plaintiff's application. The court ordered that a will be made on behalf of Bridget in accordance with the proposed will. The court also made orders regarding the costs of the application. The final orders of the court were that the plaintiff would be permitted to apply for, and then, an order authorising a will to be made on behalf of Bridget, with the contents of the will to be as proposed by the plaintiff. The defendants were ordered to pay the costs of the application.

Orders