Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Small v Phillips (No 2) [2019] NSWCA 268 Hearing dates: 16 August 2019 Date of orders: 25 September 2019 Decision date: 04 November 2019 Before: Brereton JA; McCallum JA; Emmett AJA Decision: Orders made on 25 September 2019 set out in Appendix 1.
Catchwords: SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW) Legislation Cited: Corporations Act 2001 (Cth)
Charitable Trusts Act 1993 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Succession Act 2006 (NSW)Cases Cited: Boulton v Sanders & Ors (2004) 9 VR 495
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308
House v The King (1936) 55 CLR 499
J v Lieschke (1987) 162 CLR 447; [1987] HCA 4
Protective Commissioner v D (2004) 60 NSWLR 513
Rebenta Pty Ltd v Wise [2007] NSWSC 1332
Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530
Re Fulop (1987) 8 NSWLR 679
Re The Will of Bridget [2018] NSWSC 1509
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15
Small v Phillips [2019] NSWCA 222
W v H [2014] NSWSC 1696Category: Principal judgment Parties: Anthony Phillip Small (Appellant)
Sharonne Rose Phillips (First Respondent)
Robert Ellis Phillips (Second Respondent)
Sharonne Rose Phillips and Robert Ellis Phillips in their capacity as private managers of the estate of Millie Phillips (Third Respondent)
Millie Phillips by her Tutor Michaela Money (Fourth Respondent)Representation: Counsel:
Solicitors:
C J Birch SC with J Mack (Appellant)
Submitting Appearance (First Respondent)
L Ellison SC (Second Respondent)
J Needham SC (Third Respondent)
M K Meek SC (Fourth Respondent)
Dukes Lawyers (Appellant)
David Landa Stewart (First Respondent)
Glass Goodwin (Second Respondent)
Brown Wright Stein (Third Respondent)
MJM Lawyers (Fourth Respondent)
File Number(s): 2019/147133 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity – Protective List
- Citation:
- [2019] NSWSC 331
- Date of Decision:
- 15 April 2019
- Before:
- Lindsay J
- File Number(s):
- 2018/373426
HEADNOTE
[This headnote is not to be read as part of the decision]
On 15 April 2019 a judge of the Supreme Court (the primary judge) dismissed the summons of Mr Anthony Small (Anthony) which sought an order under the Succession Act 2006 (NSW) (the Succession Act) authorising a will to be made on behalf of his…
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Details
- AGLC
- Small v Phillips (No 2) [2019] NSWCA 268
- Case
- [2019] NSWCA 268
- Decision Date
CaseChat Overview and Summary
The appeal concerned an application for a statutory will to be made on behalf of the fourth respondent, Ms. Phillips, who lacked testamentary capacity. The applicants were Ms. Phillips' children, and the fourth respondent was Ms. Phillips' daughter, who was also the executor of her mother's estate. The dispute centred on whether the court should exercise its discretion under section 18 of the *Succession Act 2006* (NSW) to authorise the making of a statutory will. The appeal was heard by Brereton and McCallum JJA and Emmett AJA in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the proposed statutory will was one that Ms. Phillips would have made had she possessed testamentary capacity, and whether it was otherwise appropriate for the court to authorise such a will. The court was required to consider the standard of review applicable to the exercise of the jurisdiction conferred by section 18 of the *Succession Act 2006* (NSW).
The Court of Appeal considered the evidence presented regarding Ms. Phillips' likely intentions and wishes concerning her estate. The judges applied the principles governing the making of statutory wills, focusing on whether the proposed will reflected what the testator would have done if capable. The court reviewed the findings of the primary judge and the evidence before them to determine if the threshold for making a statutory will was met.
The Court of Appeal made orders on 25 September 2019, the details of which are set out in Appendix 1 to the judgment.
The primary legal issues before the Court of Appeal were whether the proposed statutory will was one that Ms. Phillips would have made had she possessed testamentary capacity, and whether it was otherwise appropriate for the court to authorise such a will. The court was required to consider the standard of review applicable to the exercise of the jurisdiction conferred by section 18 of the *Succession Act 2006* (NSW).
The Court of Appeal considered the evidence presented regarding Ms. Phillips' likely intentions and wishes concerning her estate. The judges applied the principles governing the making of statutory wills, focusing on whether the proposed will reflected what the testator would have done if capable. The court reviewed the findings of the primary judge and the evidence before them to determine if the threshold for making a statutory will was met.
The Court of Appeal made orders on 25 September 2019, the details of which are set out in Appendix 1 to the judgment.
Orders
Orders of the court
Orders made on 25 September 2019 set out in Appendix 1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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