Burns v The Estate of Troy Mitchell Burns, a Protected Person [2013] NSWSC 1550

Burns v The Estate of Troy Mitchell Burns, a Protected Person [2013] NSWSC 1550

Having regard to medical, financial, and relational evidence, the Court is satisfied that Troy Burns lacks testamentary capacity and is reasonably likely to have made a will similar to the proposed form (providing for both his daughter Aliesha and his mother and brother), if he had capacity. Applicant is appropriate, all interested persons were notified, and leave should be granted under s 19 of the Succession Act 2006 (NSW).

Parties
Plaintiff: Carol Mildred Norma Burns; Other Information: The Estate of Troy Mitchell Burns, a Protected Person
Jurisdiction
Australia
Judgment Date
24 October 2013
Procedural Posture
Succession Statutory Will Application / Leave Application to Commence Proceeding
Outcome
Leave granted for application to proceed.
Legal Topics
Statutory Wills, Testamentary Capacity, Procedure Under Succession Act 2006 (nsw) Ss 18, 19, 20, 21, 22, Requirements for Leave, Protected Persons
Succession Law Equity Statutory Wills Testamentary Capacity Procedure Under Succession Act 2006 (nsw) Ss 18, 19, 20, 21, 22 Requirements for Leave Protected Persons

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Parties

Carol Mildred Norma Burns

Plaintiff

The Estate of Troy Mitchell Burns, a Protected Person

Other Information

Procedural Posture

Succession Statutory Will Application / Leave Application to Commence Proceeding

Legal Issues

  1. 1 Whether leave should be granted for an application to make a will on behalf of a person lacking testamentary capacity under s 19 of the Succession Act 2006 (NSW)
  2. 2 Whether the proposed will is 'reasonably likely' to be one the person would have made if he had testamentary capacity
  3. 3 Whether applicant is an appropriate person to bring the application

Ratio Decidendi

Having regard to medical, financial, and relational evidence, the Court is satisfied that Troy Burns lacks testamentary capacity and is reasonably likely to have made a will similar to the proposed form (providing for both his daughter Aliesha and his mother and brother), if he had capacity. Applicant is appropriate, all interested persons were notified, and leave should be granted under s 19 of the Succession Act 2006 (NSW).

Court Disposition

Leave granted for application to proceed.

Orders

  • Leave is granted pursuant to s 19 Succession Act 2006 (NSW) for Mrs Burns to bring an application under s 18 on behalf of Troy Burns.