Small v Phillips (No 2)

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.