AB v CB & Ors [2009] NSWSC 680

AB v CB & Ors [2009] NSWSC 680

Because CB had no testamentary capacity and would never regain it, those with a legitimate expectation of benefit had notice and did not contest, no eligible family provision claimant was identified, and the proposed will had a fairly good chance of reflecting CB's likely testamentary intentions by benefiting AB, then SB, then charities and excluding FB, leave and final statutory will orders were appropriate. A separate representative was not appointed because interviewing CB was unlikely to produce useful information, might distress her, and the costs would diminish an estate needed for her care without serving a practical purpose.

Jurisdiction
Australia
Judgment Date
20 July 2009
Procedural Posture
Application for a Statutory Will Under S 18 of the Succession Act 2006 (nsw) / Ex Tempore Principal Judgment on Leave, Representation Order and Final Statutory Will Orders
Outcome
Leave granted and will approved; representation order refused; identifying details suppressed by use of pseudonyms.
Legal Topics
['statutory Will' 'pre Empted Testamentary Capacity' 'representation Order' 'protective Jurisdiction' 'non Disclosure Order' 'private Hearing' 'testamentary Capacity']
['succession' 'equity' 'civil Procedure'] ['statutory Will' 'pre Empted Testamentary Capacity' 'representation Order' 'protective Jurisdiction' 'non Disclosure Order' 'private Hearing' 'testamentary Capacity']

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Procedural Posture

Application for a Statutory Will Under S 18 of the Succession Act 2006 (nsw) / Ex Tempore Principal Judgment on Leave, Representation Order and Final Statutory Will Orders

Legal Issues

  1. 1 ['Whether an uncontested statutory will application may be heard in the absence of the public and orders made without publishing identifying reasons.' 'Whether a separate representation order should be made for CB under s 25 of the Succession Act 2006 (NSW).' 'Whether leave should be granted under s 19 of the Succession Act 2006 (NSW) and final orders made at the same time under s 18.' "Whether the proposed will excluding CB's father was reasonably likely to be a will CB would have made if she had testamentary capacity."]

Ratio Decidendi

Because CB had no testamentary capacity and would never regain it, those with a legitimate expectation of benefit had notice and did not contest, no eligible family provision claimant was identified, and the proposed will had a fairly good chance of reflecting CB's likely testamentary intentions by benefiting AB, then SB, then charities and excluding FB, leave and final statutory will orders were appropriate. A separate representative was not appointed because interviewing CB was unlikely to produce useful information, might distress her, and the costs would diminish an estate needed for her care without serving a practical purpose.

Court Disposition

Leave granted and will approved; representation order refused; identifying details suppressed by use of pseudonyms.

Orders

  • ['The proceedings and published reasons are to use pseudonyms so as not to identify the parties or disclose particulars by which they may be identified.' 'The orders sought by Mr Glass for separate representation of CB were not made.' "The costs of Mr Glass appearing on this occasion and on the last occasion and...