Supreme Court
New South Wales
Medium Neutral Citation: Re the Will of Robert [2022] NSWSC 1037 Hearing dates: In Chambers and on the papers Date of orders: 3 August 2022 Decision date: 03 August 2022 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 be granted leave to make an application for an order under s 18 on behalf of Robert, the person lacking testamentary capacity.
(3) Orders pursuant to s 18 of the Act, that a statutory Will be made on behalf of Robert, in the terms set out in Ex SW1.
(4) Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed.
(5) Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court.
(6) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Robert.
(7) Orders that the Plaintiff is to serve on the NSW Trustee and Guardian, a copy of these orders and a copy of the statutory Will of Robert.
(8) Orders that these orders be entered forthwith.
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, the financial manager of the person lacking testamentary capacity, who is a friend, and one of the beneficiaries, named in the proposed Will, with balance being divided equally between two other friends is, or is reasonably likely to be, is a will that would be 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 – Report obtained from the NSW Trustee and Guardian because it has oversight over the Plaintiff as the private financial manager of Robert – Order made subject to person to be appointed as executor of statutory Will
Legislation Cited: Civil Procedure Act 2005 (NSW) s 71
Court Suppression and Non-publication Orders Act 2010 (NSW) ss 8(1)(a), (c) and (e)
Succession Act 2006 (NSW) Div 2 of Pt 2.2, ss 18-26, 57
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
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- AGLC
- Re the Will of Robert [2022] NSWSC 1037
- Case
- [2022] NSWSC 1037
- Decision Date
CaseChat Overview and Summary
The court examined the relevant provisions of the Succession Act 2006 (NSW), including sections 18, 19, and 22, which govern the creation of statutory wills. The court found that the proposed will was likely to be the will that Robert would have made if he had testamentary capacity. The court also considered the appropriateness of making an order authorising the creation of the proposed will. In making its decision, the court took into account the evidence presented, including the report from the NSW Trustee and Guardian, and the potential beneficiaries' relationships with Robert. Ultimately, the court found that it was appropriate to make an order authorising the creation of the proposed will, subject to the person to be appointed as executor of the statutory will.
In summary, the court granted leave for the plaintiff to apply for an order authorising the creation of a statutory will on behalf of Robert. The court found that the proposed will was likely to be the will that Robert would have made if he had testamentary capacity and that it was appropriate to make an order authorising the creation of the proposed will. The order was made subject to the person to be appointed as executor of the statutory will. This decision provides guidance for those involved in the creation of statutory wills and the appointment of executors in similar cases.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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