Wills v NSW Trustee - [2022] NSWSC 1098

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wills v NSW Trustee [2022] NSWSC 1098
Hearing dates: 11, 15 August 2022
Date of orders: 17 August 2022
Decision date: 17 August 2022
Jurisdiction: Equity
Before: Lindsay J
Decision:
An application under section 19 of the Succession Act 2006 NSW for leave to apply for a court-authorised will under section 18 of the Act refused.

Catchwords:
SUCCESSION — Statutory wills, Succession Act 2006 NSW, s 18, s 19, s 22 — Plaintiff applies for Statutory Will in her favour – Plaintiff is guardian of protected person and beneficiary in alleged informal Will made in her favour – Protected person without family – Death without a Will might result in estate passing to the State – Application for leave to apply for Statutory Will refused – Court not satisfied of matters prescribed by section 22

Legislation Cited:
Evidence Act 1995 NSW
Interpretation Act 1987 NSW
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW
Succession Act 2006 NSW

Cases Cited:
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308
Perpetual Trustee Co Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377
Re K’s Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711

Category: Principal judgment
Parties: Plaintiff: Patricia Elizabeth Wills
Defendant: NSW Trustee and Guardian (the NSW Trustee) as financial manager of the protected person
Representation:
Counsel:
Plaintiff: M Bennett
Defendant: S Macmillan, Solicitor
Solicitors:
Plaintiff: Keypoint Law
Defendant: NSW Trustee

File Number(s): 2022/00237285

Judgment

By a summons filed on 11 August 2022 the plaintiff applies to the Court under Part 2.2 Division 2 (sections 18-26) of the Succession Act 2006 NSW for:

A grant under section 19 of the Act of leave to make an application for an order under section 18 of the Act in respect of a protected person (within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW), a person said to lack testamentary capacity;

An order under section 18 authorising a will to be made for the protected person; and

An order, under section 18, approving as a will for the protected person, an instrument which, if made, would appoint the defendant, the NSW Trustee (presently the protected person’s financial manager by virtue of an order made by the NSW Civil and Administrative Tribunal (NCAT), in its Guardianship Division, on 14 September 2020, pursuant to the Guardianship Act 1987 NSW) as executor and leave the whole of the protected person’s estate to the plaintiff (a registered nurse and neighbour of the protected person; presently the guardian of the protected person pursuant to an order made on 30 April 2020 and confirmed on 29 September 2020 by the Guardianship Division of NCAT).

The fact that a person is a “protected person” within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 is not, of itself, proof of a lack of testamentary capacity: Perpetual Trustee Co Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wills v NSW Trustee

Details

AGLC: Wills v NSW Trustee [2022] NSWSC 1098
Case: [2022] NSWSC 1098
Decision Date: 17 August 2022

CaseChat Overview and Summary

The plaintiff in this case, Wills, applied for a statutory will in her favour under the provisions of the Succession Act 2006 (NSW). Wills is the legal guardian of a protected person who allegedly made a will in her favour. The protected person had no family and there was a risk that, in the absence of a will, the estate would pass to the state. The Court was required to determine whether the plaintiff's application for a statutory will should be granted. The court had to consider whether the requirements of section 22 of the Succession Act 2006 (NSW) were satisfied, specifically whether the court was satisfied that the will was informal and that the plaintiff was entitled to a statutory will.

The court held that the application for leave to apply for a statutory will should be refused. The court was not satisfied of the matters prescribed by section 22 of the Succession Act 2006 (NSW). The court found that there was insufficient evidence to establish that the will was informal and that the plaintiff was entitled to a statutory will. The court found that the plaintiff had not discharged the onus of proof to establish that the requirements for a statutory will were satisfied. The court held that the application for leave to apply for a statutory will should be refused.

The court did not grant leave for the plaintiff to apply for a statutory will. The court found that the plaintiff had not established the necessary criteria for a statutory will under the Succession Act 2006 (NSW). The court held that there was insufficient evidence to establish that the will was informal and that the plaintiff was entitled to a statutory will. The court held that the application for leave to apply for a statutory will should be refused.

Orders