Re the Will of Joseph

[2022] NSWSC 565

Supreme Court

New South Wales

Medium Neutral Citation:

Re the Will of Joseph [2022] NSWSC 565

Hearing dates:

2 and 3 May 2022

Date of orders:

3 May 2022

Decision date:

10 May 2022

Jurisdiction:

Equity - Duty List

Before:

Henry J

Decision:

Leave granted for making of application for statutory will. Orders made approving the terms of the will and for signing by Registrar.

Catchwords:

SUCCESSION - Statutory Will – where minor suffered severe traumatic brain injury in a motor vehicle accident – where significant sum of damages awarded – where applicant seeks a statutory will – whether minor lacks testamentary capacity – whether the proposed will is reasonably likely to be one that would have been made by the minor if he had testamentary capacity

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

AB v CB [2009] NSWSC 680

A Ltd v J(No 2) [2017] NSWSC 896

Banks v Goodfellow (1870) LR 5 QB 549

Estate Rofe [2021] NSWSC 257

Kerr & anor v Badran & anor Estate of Badra [2004] NSWSC 735

Re Fenwick; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530

Re K, JL [2016] SASC 53

Re MP’s Statutory Will [2019] NSWSC 331

Re Will of Alexa [2020] NSWSC 560

Secretary, Department of Family & Community Services v K [2014] NSWSC 1065

Small v Phillips(No 2) [2019] NSWCA 268

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (Plaintiff)
KM (Defendant)

Representation:

Counsel:
V. Hartstein (Plaintiff)

Solicitors:
NSW Crown Solicitor (Plaintiff)
P. Whitehead (Defendant and another interested party)

File Number(s):

2022/126632

Publication restriction:

The orders made prohibit the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Joseph”).

Judgment

1. This is an application by Summons filed on 2 May 2022 for the making of a statutory will under the Succession Act 2006 (NSW) (Succession Act) on behalf of a minor who was under the parental responsibility of the NSW Minister for Families, Communities and Disability Services (Minister).  I refer to that young person as Joseph (not his real name) and to other persons by the nature of their relationship to Joseph or their initials.

2. The application was brought by the Secretary, Department of Communities and Justice (Secretary) on an urgent basis. That was in circumstances where Joseph has an intellectual disability, recently received a large settlement of a personal injury claim and was turning 18 shortly, with the consequence that the Secretary would then have no standing to bring an application of this nature. The application was supported by an affidavit from Ms Dana McLay, a Manager Casework employed by the Department of Communities and Justice, an affidavit from Ms Emily Burgess, a solicitor employed in the office of the New South Wales Crown Solicitor, a statement filed in compliance with s 19 of the Succession Act (s 19 Statement) and written submissions.

3. The named defendant is Joseph’s mother. She and other family members who are close to Joseph were notified of the application, as was the NSW Trustee and Guardian who is Joseph’s financial manager and guardian. The hearing of the application took place on 2 and 3 May 2022. It was not contested.

4. At the end of the hearing, I granted the orders sought by the Secretary for leave to make the application under s 19 of the Succession Act, for the substantive relief under s 18 for the making of the statutory will (in the terms set out in Exhibit C) and ancillary orders, and indicated that I would publish my reasons later. These are those reasons.

Background facts

5. Joseph was born in 2004 in Wagga Wagga. He was 17 at the time of the application and is identified as an Aboriginal child of the Wiradjuri Nation.

6. On 30 September 2006, Joseph was involved in the car accident in which he sustained head, chest and other injuries, including a severe traumatic brain injury (TBI) which significantly impacted his cognitive development. He had been an unrestrained passenger with his mother in the front seat of a vehicle driven by the mother’s former partner. Both the mother and her former partner were drug-affected when the car accident occurred.

7. On 18 March 2022, Joseph was awarded $12 million plus costs in final settlement of his claim for damages for personal injuries that had been brought on Joseph’s behalf in the District Court of NSW.

8. On 19 April 2022, the NSW Civil and Administrative Tribunal (NCAT) made orders appointing the Public Guardian as Joseph’s guardian (with power to decide where he could reside, what health care he should receive and to make decisions about medical treatments and what services were to be provided for him) and the NSW Trustee and Guardian as Joseph’s financial manager of his estate.

9. Joseph’s estate is currently valued at approximately $11,660,000. Should Joseph die intestate, his entire estate would go to his mother: Succession Act, s 128. If his mother does not survive him, Joseph’s two sisters would take on intestacy: Succession Act, s 129(1).

10. Joseph’s mother lives with her partner (DG) in Queensland. Joseph’s father died in 2011.

11. Joseph’s mother has not been involved in his daily care for many years. He was assumed into care by the Queensland Department of Child Safety in October 2006 in relation to the circumstances of the accident and reports of neglect, possible domestic violence and concerns about his mother’s alleged drug use. The Minister was allocated parental responsibility of Joseph on 9 January 2012, as a result of final care orders that had been made in the Queensland Children’s Court being registered in New South Wales.

12. After being taken into care in October 2006, Joseph was placed with authorised carers and then with a maternal aunt (KK). Joseph’s mother moved in with KK in January 2008 to care for Joseph but, following reports of parenting issues and drug use, Joseph was returned to the primary care of KK.

13. In March 2009, Joseph was placed into the care of his maternal grandmother (who lives in Wagga Wagga). Joseph lived with and was cared for by his maternal grandmother until about September 2015 when she indicated that she could no longer provide fulltime care for Joseph, following an increase in Joseph exhibiting violent behaviour. Joseph was transitioned to an emergency care program.

14. Since 23 March 2016, Joseph has lived in a residential therapeutic placement run by a non-profit that provides residential accommodation to young persons who have complex support needs. While he is able to speak and learn practical skills, Joseph requires supervision and assistance with all aspects of daily life. It is envisaged that Joseph will remain in his current placement at the non-profit until a property can be purchased and set up for him (which would include one-on-one 24-hour care and support) utilising funds from his settlement.

15. Since 2016, Joseph has seen his mother and DG approximately once or twice each year and has had regular telephone calls with the mother at least once a week. Their relationship is described as being generally a good one, although recently Joseph expressed some concerns to his carers about requests for money and the mother’s drug use. While his mother’s circumstances are not known, it seems unlikely she is financially secure as she has relied on funding from the Department of Communities and Justice to pay for her trips to visit Joseph.

16. Joseph has two sisters, a maternal half-sister (KA) who lived with Joseph while he resided with his maternal grandmother in Wagga Wagga and with whom he remains close, and a paternal half-sister (TO) who Joseph has never met.

17. The most recent case plan notes reflect that Joseph’s relationship with KA is very important to him. KA is currently living in Wagga Wagga with the maternal grandmother while KA and her partner are building a house. KA has recently had a baby, was previously working in the aged care sector and is studying nursing.

18. Joseph has retained a close relationship with his maternal grandmother since ceasing to live with her. He has regular face-to-face visits and phone contact with her. According to Ms McLay’s evidence, Joseph identifies his maternal grandmother as his closest relationship. The maternal grandmother has limited finances and resides in housing owned by the Department of Communities and Justice.

19. There is no evidence of any regular ongoing contact between Joseph and KK and her family. Since early 2018, Joseph has had some visits with his paternal family which have been facilitated by his paternal great-aunt (MW) who provides a cultural connection to his Wiradjuri heritage.

20. In early 2022, Joseph had a girlfriend who resided in Albury but they have broken up.

Legislation and legal principles

21. Section 18 of the Succession Act provides that the Court may, on application by any person, make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity. Such a will may be made on behalf of a minor but must be made while they are alive: Succession Act, subss 18(3) and (4).

22. Section 19 of the Succession Act provides that an applicant must first obtain leave of the Court to make an application for an order under s 18. In applying for leave, the applicant must give the Court the information specified in s 19(2). That information is:

19 Information required in support of application for leave

…

(a) a written statement of the general nature of the application and the reasons for making it,

(b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought,

(c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought,

(d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval,

(e) any evidence available to the applicant of the person's wishes,

(f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity,

(g) any evidence available to the applicant of the terms of any will previously made by the person,

(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person,

(i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person,

(j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person,

(k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will,

(l) any other facts of which the applicant is aware that are relevant to the application.

23. Section 22 of the Succession Act provides that the Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied of the following:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, … is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application,

(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

24. Section 21 of the Succession Act provides that, on an application under s 18, the Court can inform itself by having regard to the information provided to the Court under s 19 or by any other manner it sees fit and it is not bound by the rules of evidence.

25. The Secretary’s submissions referred to a number of authorities which were of assistance on this application, such as Re Fenwick; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530 (Palmer J) (Re Fenwick); AB v CB [2009] NSWSC 680 (Palmer J) (AB v CB); Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 (Lindsay J) (Secretary v K); A Ltd v J(No 2) [2017] NSWSC 896 (Ward CJ in Eq as her Honour then was) (A Ltd v J (No 2)); Small v Phillips(No 2) [2019] NSWCA 268 (Small v Phillips (No 2)); Re MP’s Statutory Will [2019] NSWSC 331 (Lindsay J) (Re MP’s Statutory Will); Re Will of Alexa [2020] NSWSC 560 (Hallen J) (Re Alexa). In particular, I note the following:

1. the cases recognise the protective nature of the jurisdiction, with the best interests of the incapacitated person and those having a proper claim on their testamentary bounty as the objects of the jurisdiction: Small v Phillips(No 2) at [149]; Re Fenwick at [132]; Secretary v K at [58]; Re MP’s Statutory Will at [7] – [9];

2. the court must assess, objectively, whether and to what extent, it is appropriate to make the order for the statutory will by reference to the particular circumstances of the case and take account, where available, of the wishes of the incapacitated person while also considering whether any expressed intention is the product of their free choice or some under pressure or influence applied: Re Alexa at [83];

3. the Court should start from the position that, if there are assets of any significance in the minor’s estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate: Re Fenwick, at [172];

4. the Court must be careful not to be overly judgmental about personal faults within a family and refrain from embracing any form of presumption against a parent judged by regulatory authorities to be unworthy: Secretary v K at [81] – [82].

Consideration and determination

26. The Secretary sought an order granting leave under s 19(1) of the Succession Act to make an application and, at the same time, a final order under s 18 of that Act for a statutory will for Joseph.

27. Section 20 of the Succession Act provides that, on the hearing of an application for leave, the Court may give leave and allow the application for leave to proceed as an application for an order under s 18 and, if satisfied of the matters set out in s 22, make the order. For the reasons which follow, I was satisfied that Joseph lacked testamentary capacity, the statutory requirements of ss 19(2) and 22 had been met and there were good reasons for making a final order for a statutory will in the terms proposed.

Does Joseph have testamentary capacity?

28. The issue of whether Joseph has (or does not have) testamentary capacity was critical to the Secretary’s application. While it is sufficient to demonstrate a reasonable likelihood of Joseph’s testamentary incapacity on the leave application (Succession Act, s 22(a)), in order to obtain a final order, the jurisdictional fact that he actually “lacks testamentary capacity” had to be established: Re Fenwick at [121]. Pursuant to subss 19(2)(b) and (f) of the Succession Act, satisfactory evidence of Joseph’s lack of testamentary capacity was also required to be given, as was evidence of the likelihood of Joseph acquiring or regaining testamentary capacity.

29. The test for testamentary capacity is well known and derived from that enunciated in Banks v Goodfellow (1870) LR 5 QB 549. In Estate Rofe [2021] NSWSC 257 at [140] and [146], Lindsay J referred to Banks v Goodfellow and identified the following “foundational” elements of “testamentary capacity”:

“(a) A competent testator must understand the nature of a will and its effects.

(b) A competent testator must understand the extent of the property of which he or she is disposing.

(c) A competent testator must be able to comprehend and appreciate (that is, to weigh) the claims to which he or she ought to give effect.

(d) A competent testator must be free of any medical condition that prevents him or her from having, or duly exercising, those faculties in the making of a will.”

30. In evidence were medical-legal reports prepared in relation to Joseph’s claim for damages for personal injuries, a report from his treating psychiatrist and evidence from Ms McLay and staff notes from his care team.

31. A report from a clinical neuropsychologist, Dr Mandalis, dated 4 June 2020, recorded that Joseph’s severe TBI sustained in the accident caused a range of speech, language and cognitive impairments including dyspraxia, expressive language difficulties and extremely poor attention and hyperactivity, that Joseph meets the DSM-V criteria for a moderate intellectual disability and that the cognitive deficits caused by the TBI are permanent. It also recorded that Joseph’s overall level of intellectual functioning (as reflected in the full-scale intellectual quotient of 55) falls in the extremely low range and, in addition to his intellectual disability, Joseph has deficits in verbal memory, a severe reading disorder, poor reasoning and planning skills and limited impulse control. Dr Mandalis assessed his cognitive functioning as lacking the capacity for mainstream schools and only being appropriate for disability-supported employment and estimated that he did not have the capacity to manage his financial affairs on the basis of his history and cognitive functioning, noting that he was reported as having no understanding of the value of money or the different denominations. It also noted that Joseph’s behaviour can escalate into extreme behaviours and he can become suicidal.

32. A report from an Occupational Therapist, Ms Phoebe Norton-Knight, dated 3 June 2020, observed that Joseph suffers from conditions including autism spectrum disorder, attention deficit hyperactivity disorder and conduct and oppositional defiance disorder which impact his ability to engage and interact with other people. Ms Norton-Knight also observed that Joseph was unable to access the community without a support person, requires supervision and assistance with all interactions and recommended he continue to have access to support staff on a 24 hour basis to meet his needs.

33. In a report dated 20 April 2022, Joseph’s treating psychiatrist, Dr Adesina Adesanya, referred to the neuropsychological assessments to date, including that by Dr Mandalis, and noted that Joseph had a moderate intellectual disability and had been diagnosed as suffering from autism and attention deficit hyperactivity disorder. His report also noted that changes to Joseph’s medication, psychosocial and environmental interventions had led to Joseph’s behaviours and functioning having improved since mid-2018.

34. Dr Adesanya was asked to assess Joseph’s testamentary capacity. His report records that Joseph appeared to understand what a will is (“is for when one dies. It tells you who to give your assets/belongings to”), that he planned to leave his assets to his maternal grandmother and sister when he dies and that Joseph was aware of the recent compensation award for his TBI but would not disclose the amount to Dr Adesanya when asked and did not feel capable of managing large amounts of money.

35. Dr Adesanya opined that Joseph has the current intellectual capacity to understand what a will is, the nature and extent of his estate and the capacity to express his intentions in respect of a will. However, in Dr Adesanya’s opinion, his intellectual capacity in relation to the understanding of his obligations to beneficiaries is limited and he lacks sufficient ability to understand any obligation on him in respect of any people that may be included or excluded from benefitting from his estate. Dr Adesanya also opined that there was a good chance that Joseph’s TBI, testamentary capacity and life expectancy would likely improve in the future. Notwithstanding that positive outlook, Dr Adesanya did not opine that Joseph would acquire testamentary capacity in the future. Nor did he provide any timeframe for when and in what circumstances any further improvements were likely to occur.

30. Ms McLay’s affidavit referred to conversations with Joseph regarding the settlement money and how he wished to leave his money if he died, which were not inconsistent with the contents of Dr Adesanya’s report and the other medical evidence. She deposed to having explained to Joseph that he had received a large amount of money which was needed to support him for the rest of his life, that a guardian and trustee would be put in place to help manage the money in the future and briefly discussed his will.

31. Ms McLay met with Joseph on 14 April 2022 and recorded their discussion. The recording, which I listened to after court on 2 May 2022, revealed that Joseph had some understanding of the nature of a will (consistent with what he told Dr Adesanya as Joseph referred to a will as being “for when you die” and “where your money and stuff would go”), was able to identify the amount of the settlement (“$12 mill”) and who he wanted to put in the will. On this last point, Joseph said the following: he had spoken to his “nan” about the will and he wanted to put her in it; the important members of his family were “her [his ‘nan’] and [KA]”; he did not want to talk about other members of his family; when asked about his mother, he said it made him upset when talking about her, that he was not talking to her at the moment as when he was in contact with her she would bring “money stuff up” and he was a “bit unsure” about whether to consider his mother or DG in the will although he acknowledged that his relationship with them in the past had been good; and when prompted, agreed that if he had kids, got married or had a long-term partner, he would want them included in the will.

32. Having listened to the recording and considered all of the evidence (medical and non-medical), I was satisfied that Joseph lacked testamentary capacity. The materials, and in particular Dr Adesanya’s report, satisfied me that Joseph’s cognitive deficits mean that he does not have the capacity to comprehend and appreciate (that is, to weigh) the competing interests and potential claims on his estate to which he ought to give effect, which is a critical limb to an assessment of testamentary capacity.

33. I also had a high degree of satisfaction that Joseph does not have the capacity to understand the real value of his estate, in terms of the real value of $12 million. While Dr Adesanya opined that Joseph had the capacity to understand the nature and extent of his estate and noting that testamentary capacity does not require a testator to precisely know the value of a sizeable and complex estate (Kerr & anor v Badran & anor Estate of Badra [2004] NSWSC 735 at [49]). Overall, the evidence strongly suggested that Joseph had little to no appreciation of the real value of money and would be very unlikely to have the capacity to understand the amount of the property that he could dispose of by his will. Joseph’s cognitive deficits also meant that he is unlikely to understand the concept of the powers of executors and trustees and how the distribution of an estate would operate (such as by way of discretionary trust) apart from naming who should receive his “money and stuff” after he died. Joseph is also a “protected person” within the meaning of s 38 of the NSW Trustee and Guardian Act 2009 (NSW). While that fact alone did not establish that Joseph was “a person who lacks testamentary capacity” (Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 380; Estate Cockell; Cole v Paisley [2016] NSWSC 349 at [46]), it was another relevant consideration.

34. Accordingly, I concluded that the Secretary had provided satisfactory evidence of Joseph’s testamentary capacity and the likelihood of him acquiring testamentary capacity (Succession Act, subss 19(2)(b) and (f)), there was a reason to believe that Joseph was incapable of making a will (Succession Act, s 22(a)) and, for the purposes of subss 18(1) and (4) of the Succession Act, he lacks testamentary capacity to make a will.

Should the court grant leave pursuant to s 19 and, if so, should the proposed will be authorised?

41. Turning to the other statutory requirements, Ms McLay’s affidavit, the s 19 Statement and the submissions filed by the Secretary addressed the general nature and reasons for making the application (Succession Act, s 19(2)(a)). In summary, the Secretary considered that it would be inappropriate for Joseph’s mother to be the sole beneficiary of his estate in circumstances where Joseph was removed from his mother’s care following the car accident and reports of other parenting issues, Joseph had spent his formative years with his maternal grandmother and Joseph had expressed that he would like his estate to go to his maternal grandmother and KA. The Secretary also submitted that a statutory will was sought because Joseph is very susceptible to the manipulation of others.

42. The facts referred to at [9], [10], [12], [16] and [37] demonstrate that information was provided to the Court as to the estimate of Joseph’s estate, Joseph’s wishes, any previous wills (of which there were none) and the persons who would be entitled to claim on an intestacy: Succession Act, ss 19(2)(c), (e), (g) and (h). The evidence also disclosed that it was unlikely that there would be any person who could make an application under Chapter 3 of the Succession Act in respect of his property and the circumstances of those for whom provision might reasonably be expected to be made by Joseph’s will (see [15], [17]-[18]) (Succession Act, subss 19(2)(i) and (j)).

43. The terms of the proposed will (Succession Act, s 19(2)(d)) provide for the NSW Trustee and Guardian to be the executor and trustee, a charitable gift of $5000 to the NSW Rural Fire Service and, after payment of expenses, the residue to be divided and disposed of as follows:

1. 25% to any children Joseph may have, conditional on those children attaining 21 years;

2. 25% to Joseph’s spouse, if any at the time of his death;

3. 25% to Joseph’s maternal grandmother;

4. 15% to Joseph’s sister KA, and if she predeceases Joseph, then to her children who attain 21 years; and

5. 10% in a discretionary trust to Joseph’s mother and DG (referred to as Joseph’s step-father).

44. The proposed will also provides that the other shares will increase proportionately if any of the shares referred to in [43](a)-(d) above do not take effect, and for the remainder of the capital and income of the discretionary trust (if any) to go to KA or her children. Some minor changes to clarify this intent were made to the initial will annexed to the Summons after comments from the court and discussions between the parties.

45. I was satisfied that the proposed will is or is reasonably likely to be one that Joseph would make it if he were to have testamentary capacity and that it was appropriate to be made, in accordance with ss 22(b) and (c) of the Succession Act. This was one of the rare cases where a minor (close to reaching majority) who has never had testamentary capacity because of a cognitive disability and his age has sufficient intellectual capacity to have expressed meaningful views of his testamentary wishes, which the court must take into account: Re Fenwick at [179]; Re K, JL [2016] SASC 53 at [52].

46. The proposed will included provision for the family members with whom Joseph was closest, namely his maternal grandmother and KA, and reflected his stated wishes (as outlined at [34] and [37] above and in the affidavit of Dana McLay dated 2 May 2022 at [76]). It also caters for the future possibilities that Joseph will have children and a spouse or de facto partner, matters that were discussed with Joseph and to which he agreed although he had not previously considered it himself. As the Secretary submitted, Joseph’s intellectual disability and other behavioural disorders may make it unlikely that he will ever be able to sustain a long-term relationship but it is conceivable that he may father one or more children and provision should be made for them and the possibility for any spouse or long-term partner.

47. As to the provision made in the proposed will for the mother and DG, I acknowledge that Joseph had expressed a desire not to leave his mother any money. However, I accepted the Secretary’s submission that based on the evidence, it appeared that Joseph’s views may be dependent upon who he was getting along with at any given time. Having regard to the evidence of Joseph’s past relationship with the mother and DG (which was described as a “good” one), I considered that a provision for some legacy to then be held on trust and managed on their behalf was reasonably likely to be one that would have been made if Joseph had testamentary capacity that enabled him to comprehend and properly weigh up the claims on his bounty and was appropriate despite Joseph’s expressed concerns and the history of the mother’s perceived issues with drug taking. In that regard, I should also record that the mother’s solicitor informed the Court that she had been drug-free for six years.

48. Joseph has engaged in volunteer work with the NSW Rural Fire Service which also provided a reasonable basis for the provision of the small charitable gift in the will (Succession Act, s 19(2)(k)).

49. There was no doubt that the Secretary was an appropriate person to make the application (Succession Act, s 22(d)). Having been made by the Secretary, the application was brought at no cost to Joseph’s protected estate, another factor that was relevant to the application and the hearing being conducted on an urgent basis (Succession Act, s 19(2)(l)).

50. I was satisfied that adequate steps had been taken to allow representation of all persons with a proper interest in the application (Succession Act, s 22(e)). The Crown Solicitor had written to Joseph’s mother, DG, his maternal grandmother and KA before commencing the proceedings. The letters advised that an application would be made, set out the terms of the proposed will, noted that they were entitled to participate in the hearing and suggested that they obtain legal advice.

51. At the hearing on 2 May 2022, DG appeared by telephone on behalf of the mother and himself and they were served with the Summons and affidavits that afternoon. A solicitor (Mr Whitehead) appeared for them at the resumed hearing on 3 May 2022. After standing the matter in the list to enable Mr Whitehead to consider the materials and provide further advice, Mr Whitehead informed the court that the mother and DG did not wish to adduce any evidence and consented to the application.

52. Joseph’s maternal grandmother and KA did not appear at the hearing but the maternal grandmother had indicated she was supportive of the proposed will and the steps taken by the Secretary in that regard and had discussed it with KA.

53. The NSW Trustee and Guardian was also informed of the proceedings and indicated that they did not intend to appear.

54. I accepted the Secretary’s submission that, in the circumstances of this case, it was appropriate for an order to be made under s 18 of the Succession Act in relation to Joseph. In particular, the size of the Joseph’s estate, his cognitive disabilities (which make him susceptible to the influence of others) and the fact that if he were to die his estate would pass to his mother (which would not be in accordance with his wishes or reflect those with whom Joseph has the closet bonds) persuaded me that an order for a statutory will in the terms proposed accorded with the protective nature of the jurisdiction.

55. For these reasons, I made the following orders:

1. That the Notice of Motion be heard instanter.

2. That the hearing of these proceedings be expedited.

3. That the plaintiff have leave to file in Court in these proceedings the Affidavit of Emily Hannah Burgess dated sworn 3 May 2022.

4. Until 4 May 2029, that there be no publication of any information that would identify, or tend to identify, the child [Joseph] born xx 2004 as the subject of these proceedings except for the purpose of the proper conduct of these proceedings (this order being made on the grounds specified in s.8(1)(a), (c) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)).

5. That the child the subject of these proceedings be known by the pseudonym “Joseph”.

6. That the proceedings be known as “Re the Will of Joseph”.

7. An order granting the Plaintiff leave to apply for an order under section 18 of the Succession Act 2006 (NSW).

8. An order under section 18 of the Succession Act 2006 (NSW) authorising a will to be made:

1. on behalf of a minor, [Joseph], born xx 2004, who lacks testamentary capacity;

2. in the terms of the proposed amended Will being Exhibit C on this Application (Will).

9. An order pursuant to s.23 of the Succession Act 2006 (NSW) that a Registrar be authorised and directed to sign and seal with the seal of the Court the Will made under s 18.

10. An order that these orders be entered forthwith.

11. An order that the costs of the proceedings are as agreed between the parties.

12. An order that the plaintiff be granted leave to provide an unredacted copy of the court documents in the proceedings to the New South Wales Trustee and Guardian.

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Decision last updated: 10 May 2022