Small v Phillips

The Supreme Court of New South Wales, Court of Appeal, considered an application for a statutory will on behalf of the fourth respondent. The dispute concerned whether the Court should exercise its power under the *Succession Act 2006* (NSW) to make such a will, and specifically, whether the proposed draft will accurately reflected the fourth respondent's wishes regarding the distribution of her estate.

The primary legal issue before the Court was whether it possessed the power to make a statutory will for the fourth respondent and, if so, whether the proposed draft will was a proper reflection of her testamentary intentions. This involved assessing the evidence presented to ascertain the fourth respondent's wishes and determining if the draft will satisfied the statutory requirements and the Court's discretion.

The Court's reasoning focused on the evidence available to establish the fourth respondent's wishes. It considered the nature of the evidence, its reliability, and how it supported the terms of the proposed statutory will. The Court applied the principles governing the making of statutory wills, which require a high degree of certainty that the proposed will reflects the true intentions of the person for whom it is made. The Court ultimately concluded that the draft will should be made, as it found sufficient evidence to support its terms as representing the fourth respondent's wishes.

The Court ordered that the parties bring in short minutes of orders, including the draft will, to give effect to its conclusions. Liberty to apply was granted in the event of any disagreement regarding the proposed orders.