Re The Will of Alexa [2020] NSWSC 560

Re The Will of Alexa [2020] NSWSC 560

The Court found, on clear medical and lay evidence, that Alexa has never had testamentary capacity and will never acquire it. The statutory scheme requires an order that is, or is reasonably likely to be, what Alexa would have made had she capacity, requiring careful consideration of relationships, contributions, and agreement of family and the financial manager. The proposed will divides Alexa's estate in proportions agreed with all interested persons, aligns with her relationships and dependency history, and no person with a legitimate interest objects. The statutory and procedural requirements being met, the will is authorised under s 18. Costs should be paid from Alexa's estate.

Jurisdiction
Australia
Judgment Date
14 May 2020
Procedural Posture
Application for Statutory Will / Final Orders After Hearing in Chambers and on the Papers
Outcome
Orders made; application granted; statutory will authorised in proposed terms.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'protective Jurisdiction' 'costs Orders']
['succession Law' 'equity'] ['statutory Wills' 'testamentary Capacity' 'protective Jurisdiction' 'costs Orders']

Case Brief

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Procedural Posture

Application for Statutory Will / Final Orders After Hearing in Chambers and on the Papers

Legal Issues

  1. 1 ['Whether Alexa lacks testamentary capacity' 'Whether proposed will is or is reasonably likely to be that which Alexa would make if she had capacity' 'Whether the Plaintiff is an appropriate person to bring the application' 'Whether adequate notice was given to persons with legitimate interests' 'Whether the terms of the proposed will are appropriate']

Ratio Decidendi

The Court found, on clear medical and lay evidence, that Alexa has never had testamentary capacity and will never acquire it. The statutory scheme requires an order that is, or is reasonably likely to be, what Alexa would have made had she capacity, requiring careful consideration of relationships, contributions, and agreement of family and the financial manager. The proposed will divides Alexa's estate in proportions agreed with all interested persons, aligns with her relationships and dependency history, and no person with a legitimate interest objects. The statutory and procedural requirements being met, the will is authorised under s 18. Costs should be paid from Alexa's estate.

Court Disposition

Orders made; application granted; statutory will authorised in proposed terms.

Orders

  • ['No identification/publication of Alexa or identifying details except for proper conduct of proceedings (per Court Suppression and Non-publication Orders Act 2010 (NSW))' 'Plaintiff granted leave to apply for statutory will (s 19 Succession Act 2006 (NSW))' 'A will to be made on behalf of Alexa in form of Ex SW1 (s...