A Limited v J [2017] NSWSC 736

A Limited v J [2017] NSWSC 736

Given the urgency created by the minor's impending life-threatening surgery, the Court determined it was both necessary and lawful to make an urgent order authorising a statutory will, with the specific allocation of the residue of the estate—42.5% to the mother, 15% to the father, and 42.5% to be shared equally among the siblings—based on an evaluative judgment about what the minor would have been reasonably likely to decide had he possessed testamentary capacity, balancing the evidence about family relationships and the interests and representations of all parties.

Jurisdiction
Australia
Judgment Date
07 June 2017
Procedural Posture
Application for Statutory Will / Interlocutory/final Orders Hearing and Urgent Determination
Outcome
Application granted; statutory will authorised on urgent basis, with terms determined by the Court.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'court Approved Wills for Minors' 'protective Jurisdiction' 'family Provision']
['succession Law' 'equity'] ['statutory Wills' 'testamentary Capacity' 'court Approved Wills for Minors' 'protective Jurisdiction' 'family Provision']

Case Brief

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Procedural Posture

Application for Statutory Will / Interlocutory/final Orders Hearing and Urgent Determination

Legal Issues

  1. 1 ['Should the Court urgently authorise a statutory will on behalf of a minor lacking testamentary capacity?' "What proportions should be allocated to family members under the statutory will, particularly in light of the father's limited involvement and the short notice to him?" 'Does the proposed will satisfy the test under s 22(b) of the Succession Act 2006 (NSW) that it is reasonably likely to be one the person would have made if they had capacity?']

Ratio Decidendi

Given the urgency created by the minor's impending life-threatening surgery, the Court determined it was both necessary and lawful to make an urgent order authorising a statutory will, with the specific allocation of the residue of the estate—42.5% to the mother, 15% to the father, and 42.5% to be shared equally among the siblings—based on an evaluative judgment about what the minor would have been reasonably likely to decide had he possessed testamentary capacity, balancing the evidence about family relationships and the interests and representations of all parties.

Court Disposition

Application granted; statutory will authorised on urgent basis, with terms determined by the Court.

Orders

  • ['Pursuant to s 19 of the Succession Act 2006 (NSW), leave granted to make application for statutory will.' "Pursuant to s 18, a will to be authorised and made for the minor 'N' in the form as initialled and dated by the judge." 'Registrar directed to sign and seal the will under s 23 of the Succession Act 2006...