A Ltd v J (No 2) [2017] NSWSC 896

A Ltd v J (No 2) [2017] NSWSC 896

The Court granted leave and authorised a revised statutory will because the Child lacked testamentary capacity, the s 19 information had been provided, the s 22 requirements were satisfied, and it was reasonably likely that a person in the Child's position with testamentary capacity would make a new will accounting for the possible payment of superannuation death benefits outside the estate. The appropriate will was one that left the Mother 42.5% of residue, divided the balance equally between the Father and the six siblings, required adjustment so far as possible for superannuation death benefits paid to residuary beneficiaries, and held residuary shares on testamentary trusts.

Jurisdiction
Australia
Judgment Date
05 July 2017
Procedural Posture
Application for Leave and for an Order Authorising a Statutory Will Under the Succession Act 2006 (nsw) / Expedited Hearing of Leave Application Under S 19 and Substantive Application Under S 18
Outcome
Leave granted; application proceeded under s 18; revised statutory will authorised, signed and sealed by the Registrar; plaintiff's costs ordered out of the Child's estate on an indemnity basis; costs of the first and second defendants reserved.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'minor Without Testamentary Capacity' 'superannuation Death Benefits' 'testamentary Trusts' "costs From Protected Person's Estate"]
['succession' 'equity' 'protective Jurisdiction'] ['statutory Wills' 'testamentary Capacity' 'minor Without Testamentary Capacity' 'superannuation Death Benefits' 'testamentary Trusts' "costs From Protected Person's Estate"]

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Procedural Posture

Application for Leave and for an Order Authorising a Statutory Will Under the Succession Act 2006 (nsw) / Expedited Hearing of Leave Application Under S 19 and Substantive Application Under S 18

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff under s 19 of the Succession Act 2006 (NSW) to apply for an order authorising a statutory will for the Child.' 'Whether the Child lacked testamentary capacity for the purposes of an order under s 18 of the Succession Act 2006 (NSW).' 'Whether the proposed new will was, or was reasonably likely to be, one that would have been made by the Child if the Child had testamentary capacity.' "What provision should be made for the Mother, Father and six siblings in the residue of the Child's estate." 'Whether the will should adjust residuary entitlements to take account of superannuation death benefits paid outside the estate.' 'Whether residuary bequests should be held on testamentary trusts.' "Whether the plaintiff's costs should be paid out of the Child's estate on an indemnity basis."]

Ratio Decidendi

The Court granted leave and authorised a revised statutory will because the Child lacked testamentary capacity, the s 19 information had been provided, the s 22 requirements were satisfied, and it was reasonably likely that a person in the Child's position with testamentary capacity would make a new will accounting for the possible payment of superannuation death benefits outside the estate. The appropriate will was one that left the Mother 42.5% of residue, divided the balance equally between the Father and the six siblings, required adjustment so far as possible for superannuation death benefits paid to residuary beneficiaries, and held residuary shares on testamentary trusts.

Court Disposition

Leave granted; application proceeded under s 18; revised statutory will authorised, signed and sealed by the Registrar; plaintiff's costs ordered out of the Child's estate on an indemnity basis; costs of the first and second defendants reserved.

Orders

  • ["Grant leave to the plaintiff to make an application on behalf of the Child for an order authorising a will to be made for the Child in terms set out in the annexure to Mr Buchanan's affidavit sworn 26 June 2017." 'Order that the application proceed forthwith as an application for an order under s 18 of the...