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Re the Will of Robert

Re the Will of Robert

Case [2022] NSWSC 1037 3 August 2022

Statutory Wills

Capacity to Make a Will

Order Authorising a Will

Succession Law

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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
Argiro v Lagozino [2017]…

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 Robert

Details

AGLC: Re the Will of Robert [2022] NSWSC 1037
Case: [2022] NSWSC 1037
Decision Date: 03 August 2022

CaseChat Overview and Summary

The case of Re the Will of Robert involved a dispute over the creation of a statutory will on behalf of Robert, a person who lacked testamentary capacity. The plaintiff, who was Robert's financial manager and a friend, sought leave to apply for an order authorising the creation of a will in accordance with a proposal. The proposed will named the plaintiff and one other friend as beneficiaries, with the remaining balance to be divided equally between two other friends. The legal issues before the court were whether the proposed will was or was reasonably likely to be the will that Robert would have made if he had testamentary capacity and whether it was appropriate to make an order authorising the creation of the proposed will. The court considered the evidence presented, including a report obtained from the NSW Trustee and Guardian, which has oversight over the plaintiff as Robert's private financial manager.

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