State Trustees Limited v Do and Nguyen

State Trustees Limited sought authorisation for the making of a statutory will for an aged person, Mr Do, who had dementia and was assessed as lacking testamentary capacity. The respondent, Nguyen, was appointed as Mr Do’s litigation guardian and opposed the application. The dispute came before the Supreme Court of New South Wales. The primary legal issues were whether Mr Do lacked testamentary capacity, and if so, whether the proposed statutory will aligned with his likely or reasonably expected intentions. The court had to consider the Wills Act 1997 and the evidence presented regarding Mr Do’s previous wills, his relationships, and his expressed intentions.

The court examined the statutory framework under the Wills Act 1997, particularly sections 21 and 26, which pertain to the making of wills for individuals who lack testamentary capacity. The court found that Mr Do did indeed lack testamentary capacity due to his dementia. The key issue then became whether the proposed statutory will reflected his likely or reasonably expected intentions. The evidence included Mr Do’s previous wills, his expressed intentions to benefit his family, godson, and two neighbours, and the relationship dynamics within his family. The court also took into account the amending applications made in response to earlier remarks, ensuring that the final proposed will accurately captured Mr Do’s intentions.

After thorough deliberation, the court concluded that the proposed statutory will was consistent with Mr Do’s likely or reasonably expected intentions. The court was satisfied that the statutory will accurately reflected Mr Do’s wishes as evidenced by his previous wills and statements. The court authorised the making of the statutory will, taking into account the statutory requirements and the best interests of Mr Do, as represented by his litigation guardian, Nguyen. The final orders included the authorisation for the creation and registration of the statutory will as per the application, ensuring that Mr Do’s intentions were legally upheld and properly documented.