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Re the Will of Joseph

Re the Will of Joseph

Case [2022] NSWSC 565 10 May 2022

Testamentary Capacity

Statutory Will

Wills Act

Succession Law

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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

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.
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.
The named defendant is Joseph’s…

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 Joseph

Details

AGLC: Re the Will of Joseph [2022] NSWSC 565
Case: [2022] NSWSC 565
Decision Date: 10 May 2022

CaseChat Overview and Summary

Joseph, a minor, was the subject of a succession dispute following a motor vehicle accident which left him with a severe traumatic brain injury. Joseph's estate included a significant sum of damages awarded for the injury. The applicant sought to establish a statutory will for Joseph, arguing that the minor lacked testamentary capacity. The central legal issues were whether Joseph lacked testamentary capacity and, if so, whether the proposed will was reasonably likely to be one that Joseph would have made if he had testamentary capacity.

The court examined Joseph's medical evidence, which indicated that his cognitive functions were severely impaired due to the brain injury. The court acknowledged that Joseph's capacity to make a will was compromised by his injury. The court then turned to whether the proposed will was reasonably likely to be one Joseph would have made if he had testamentary capacity. This involved considering Joseph's known wishes, his character, and the distribution of his estate as proposed in the will. The court found that the proposed will reflected Joseph's known wishes and was consistent with how he would have distributed his estate if he had testamentary capacity.

The court ultimately ruled in favour of the applicant, granting the statutory will. The court was satisfied that Joseph lacked testamentary capacity and that the proposed will was reasonably likely to be one that Joseph would have made if he had testamentary capacity. The court's decision was based on a careful consideration of Joseph's medical condition, his known wishes, and the distribution of his estate as proposed in the will.

Orders