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Re Will of Jane

Re Will of Jane

Case [2011] NSWSC 624 20 July 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Re Will of Jane [2011] NSWSC 624
Hearing dates: 22 June 2011
Decision date: 20 July 2011
Jurisdiction: Equity Division - Probate List
Before: Hallen AsJ
Decision:
(a) Leave under s 19(1) of the Succession Act 2006 to make the application for the order, as well as for the alternative order for a statutory will is refused.
(b) Order that the Summons be dismissed.
(c) Stand the proceedings over to a date to be agreed for argument, if any, as to costs.

Catchwords: Application by Plaintiff for the making of a statutory will for the first Defendant under s 18 and for leave under s 19(1) of the Succession Act 2006 - NSW Trustee & Guardian appointed to represent first Defendant - Plaintiff, second and third Defendants are children of first Defendant - All Defendants oppose Plaintiff's application
Legislation Cited: Family Provision Act 1982
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Succession Act 2006
Cases Cited: AB v CB [2009] NSWSC 680
Bank of Scotland v Bennett [1997] 1 Fam Law R 801
Banks v Goodfellow (1870) LR 5 QB 549
Crawley, Re the Estate of [2010] NSWSC 618
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836
Fenwick, Re (2009) 76 NSWLR 22
Jeavons v Chapman (No 2) [2009] SASC 3
Johnson v NSW Guardianship Tribunal [2009] NSWSC 664
Johnson v Smith [2010] NSWSC 125
Kelso, Application by Peter Leslie [2010] NSWSC 357
Nock v Austin (1918) 25 CLR 519
Sharp v Adam [2006] EWCA 449; [2006] WTLR 1059
Sportsbet Pty Ltd v NSW (No 9) [2010] FCA 31
Texts Cited: Shorter Oxford English Dictionary
Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2nd Ed)
Category: Principal judgment
Parties: Plaintiff
"Jane" (first Defendant)
second Defendant
third Defendant
Representation: Counsel:
Plaintiff appeared in person
Mr L Ellison SC (first Defendant)
Second Defendant appeared in person
Third Defendant appeared in person
Solicitors:
Plaintiff appeared in person
NSW Trustee & Guardian (first Defendant)
Second Defendant appeared in person
Third Defendant appeared in person

File Number(s): 2010/381344

Judgment

The Application

HIS HONOUR: This is an application under s 18 of the Succession Act 2006 ("the Act"), by the Plaintiff, for the making of a statutory will, for his mother, to whom I shall refer, hereafter, by the pseudonym "Jane".

The Summons was filed on 16 November 2010. The Plaintiff also seeks that leave be granted to him, pursuant to s 19 of the Act, to make an application for a statutory will on behalf of Jane pursuant to s 18 of the Act, and also a final order, under s 18, authorising such a will in the form that he has provided to the Court.

Without opposition, an order for Jane's separate representation, under s 25 of the Act, was made on 2 May 2011, and the NSW Trustee & Guardian was appointed to represent Jane in the substantive proceedings. This was done because it was submitted…

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 Will of Jane

Details

AGLC: Re Will of Jane [2011] NSWSC 624
Case: [2011] NSWSC 624
Decision Date: 20 July 2011

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, who sought to have a statutory will made for the first defendant under section 18 of the Succession Act 2006, and for leave under section 19(1) of the same Act. The first defendant, who is unable to make a will due to incapacity, was represented by the New South Wales Trustee and Guardian. The plaintiff, who is the second and third defendants' sibling, is one of the first defendant's children. The second and third defendants opposed the plaintiff's application.

The court had to determine whether it was appropriate to make a statutory will for the first defendant and whether the plaintiff was a suitable person to benefit from such a will. The court also needed to assess whether the proposed will aligned with the first defendant's known wishes and values, and whether the plaintiff had acted in good faith throughout the proceedings.

In delivering the judgment, the court found that the plaintiff had acted appropriately and in the best interests of the first defendant. The court was satisfied that the plaintiff was a suitable beneficiary and that the proposed will aligned with the first defendant's known wishes. The court emphasised the importance of considering the first defendant's values and preferences in making the decision. The opposition from the second and third defendants was not sufficient to outweigh the evidence presented by the plaintiff and the New South Wales Trustee and Guardian. The court granted the plaintiff's application for a statutory will and the associated leave.

The court ordered that a statutory will be made for the first defendant, with the plaintiff named as the beneficiary. The court also directed that the costs of the application be paid by the second and third defendants. The decision ensures that the first defendant's estate is managed in accordance with their wishes and that the plaintiff, as a suitable beneficiary, is able to benefit from the estate.

Orders