Re M’s Codicil [2018] NSWSC 936

Re M’s Codicil [2018] NSWSC 936

The Court, satisfied of all statutory criteria under the Succession Act, authorised a confirmatory codicil because (1) the protected person clearly lacked testamentary capacity, (2) the codicil reflected her longstanding testamentary intentions and resolved uncertainty, (3) the applicant was an appropriate person to seek the relief, and (4) all legitimate interests were represented. The Court’s jurisdiction under the Act allowed for confirmation or effective repetition of a prior codicil in the applicant’s interests and in the protective interests of the protected person, minimising future litigation and family friction.

Parties
Applicant: A Daughter of the Protected Person; First Respondent: A Son of the Protected Person; Second Respondent: A Son of the Protected Person; Third Respondent: A Protected Person
Jurisdiction
Australia
Judgment Date
19 June 2018
Procedural Posture
Application for Court Authorised Codicil (statutory Will) / Final Judgment/order at First Instance
Outcome
Application granted; codicil authorised
Legal Topics
Court Authorised Will or Codicil, Testamentary Capacity, Protective Jurisdiction
Succession Law Equity Court Authorised Will or Codicil Testamentary Capacity Protective Jurisdiction

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Parties

A Daughter of the Protected Person

Applicant

A Son of the Protected Person

First Respondent

A Son of the Protected Person

Second Respondent

A Protected Person

Third Respondent

Procedural Posture

Application for Court Authorised Codicil (statutory Will) / Final Judgment/order at First Instance

Legal Issues

  1. 1 Whether the statutory criteria for authorisation of a codicil under sections 18-19 of the Succession Act 2006 (NSW) are met for a protected person lacking testamentary capacity
  2. 2 Whether the proposed codicil gives effect to the protected person’s testamentary intentions and resolves uncertainty in her previous testamentary instruments

Ratio Decidendi

The Court, satisfied of all statutory criteria under the Succession Act, authorised a confirmatory codicil because (1) the protected person clearly lacked testamentary capacity, (2) the codicil reflected her longstanding testamentary intentions and resolved uncertainty, (3) the applicant was an appropriate person to seek the relief, and (4) all legitimate interests were represented. The Court’s jurisdiction under the Act allowed for confirmation or effective repetition of a prior codicil in the applicant’s interests and in the protective interests of the protected person, minimising future litigation and family friction.

Court Disposition

Application granted; codicil authorised

Orders

  • The applicant was granted leave to apply under s 18 of the Succession Act 2006 (NSW).
  • A codicil was authorised to be made on behalf of the protected person, confirming her testamentary intentions with specific provision for the applicant.