Re LS [2017] NSWSC 1667

Re LS [2017] NSWSC 1667

The Court made the order sought because LS was incapable of making a will, there was reason to believe the proposed will was one LS would have made if she had testamentary capacity, the Plaintiff was an appropriate applicant, and in the urgent circumstances adequate steps for representation under s 22(e) were satisfied notwithstanding that LS's mother and sisters had not been informed, since the proposed will advanced rather than adversely affected their interests and avoided the risk that they would receive no benefit on intestacy.

Jurisdiction
Australia
Judgment Date
30 November 2017
Procedural Posture
Urgent Duty Application for the Making of a Statutory Will Pursuant to Division 2 of the Succession Act 2006 (nsw) / Equity Duty List Hearing
Outcome
Order sought made.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'adequate Representation of Persons With a Legitimate Interest' 'intestacy' 'de Facto Relationships']
['equity' 'succession Law'] ['statutory Wills' 'testamentary Capacity' 'adequate Representation of Persons With a Legitimate Interest' 'intestacy' 'de Facto Relationships']

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Procedural Posture

Urgent Duty Application for the Making of a Statutory Will Pursuant to Division 2 of the Succession Act 2006 (nsw) / Equity Duty List Hearing

Legal Issues

  1. 1 ['Whether LS was incapable of making a will for the purposes of s 22(a) of the Succession Act 2006 (NSW).' 'Whether there was reason to believe the proposed will was one which LS would have made if she had testamentary capacity for the purposes of s 22(b) of the Succession Act 2006 (NSW).' 'Whether the Plaintiff was an appropriate person to apply for the order for the purposes of s 22(d) of the Succession Act 2006 (NSW).' "Whether adequate steps had been taken to allow representation of all persons with a legitimate interest in the application for the purposes of s 22(e) of the Succession Act 2006 (NSW), despite LS's mother and sisters not being informed of the application."]

Ratio Decidendi

The Court made the order sought because LS was incapable of making a will, there was reason to believe the proposed will was one LS would have made if she had testamentary capacity, the Plaintiff was an appropriate applicant, and in the urgent circumstances adequate steps for representation under s 22(e) were satisfied notwithstanding that LS's mother and sisters had not been informed, since the proposed will advanced rather than adversely affected their interests and avoided the risk that they would receive no benefit on intestacy.

Court Disposition

Order sought made.

Orders

  • ['The order sought for the making of the proposed statutory will was made.']