Secretary, Department of Family and Community Services v M and F

The matter before the court involved the Secretary of the Department of Family and Community Services and two minors, referred to as M and F. The dispute centred around the validity of a statutory will made under the Succession Act 2006 (NSW), section 18, in circumstances where the minors were under the parental responsibility of the Department of Family and Community Services. The minors were beneficiaries under a substantial estate, and the question arose as to whether the statutory will was valid given the minors' lack of capacity at the time of the will's creation. The case was heard in the Supreme Court of New South Wales.

The court had to address several legal issues. Firstly, it needed to determine if the minors ever possessed the requisite mental capacity to make a valid will. Secondly, it had to consider whether, if the minors had been capable, it would have been "reasonably likely" for them to make the proposed statutory will. Additionally, the court examined whether the finality of a judgment or order under the Uniform Civil Procedure Rules 2005 (NSW), rule 36.16, was affected by an order allowing the judgment or order to be set aside.

In its reasoning, the court found that the minors had never had the capacity to make a valid will. It concluded that even if the minors had been capable, it would not have been "reasonably likely" for them to make the proposed statutory will. The court held that the statutory will was invalid, and therefore, the order allowing the judgment or order to be set aside did not affect the finality of the judgment. Consequently, the court invalidated the statutory will and directed the estate to be distributed according to the intestacy rules.

The final orders of the court were that the statutory will was declared invalid, and the estate was to be distributed according to the intestacy rules under the Succession Act 2006 (NSW). The court's decision underscored the importance of the minors' capacity to make a valid will and highlighted the stringent requirements for statutory wills in cases where minors are involved.