A Daughter’s Application [2023] NSWSC 219

A Daughter’s Application [2023] NSWSC 219

The medical evidence established that the mother was incapable of making a will and was unlikely to regain capacity. The proposed will was reasonably likely to be one she would have made because it reflected her strong bond with the plaintiff, her affectionate relationship with her husband, her close relationship with her grandchildren, the husband's independent wealth, and the absence of evidence of charitable or other non-family testamentary intentions. The plaintiff was an appropriate applicant and adequate steps had been taken for representation of persons with legitimate interests, so the requirements for leave and for an order authorising the statutory will were satisfied.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Application for Leave and Orders Authorising a Statutory Will Under the Succession Act 2006 / Urgent Application in the Equity Duty List; Leave and Substantive Application Determined Together
Outcome
Leave granted to make a statutory will under the Succession Act 2006 and orders made authorising a will in the terms of the draft will provided by the plaintiff.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'intestacy' 'representation of Persons With a Legitimate Interest' 'court Authorised Wills']
['equity' 'succession'] ['statutory Wills' 'testamentary Capacity' 'intestacy' 'representation of Persons With a Legitimate Interest' 'court Authorised Wills']

Case Brief

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Procedural Posture

Application for Leave and Orders Authorising a Statutory Will Under the Succession Act 2006 / Urgent Application in the Equity Duty List; Leave and Substantive Application Determined Together

Legal Issues

  1. 1 ['Whether the mother lacked testamentary capacity to make a will' 'Whether the proposed will was, or was reasonably likely to be, one that the mother would have made if she had testamentary capacity' 'Whether the information required for leave to make a statutory will application had been provided' 'Whether it was appropriate to make an order authorising a statutory will under s 18 of the Succession Act 2006' 'Whether the plaintiff was an appropriate person to make the application and adequate steps had been taken for representation of persons with a legitimate interest']

Ratio Decidendi

The medical evidence established that the mother was incapable of making a will and was unlikely to regain capacity. The proposed will was reasonably likely to be one she would have made because it reflected her strong bond with the plaintiff, her affectionate relationship with her husband, her close relationship with her grandchildren, the husband's independent wealth, and the absence of evidence of charitable or other non-family testamentary intentions. The plaintiff was an appropriate applicant and adequate steps had been taken for representation of persons with legitimate interests, so the requirements for leave and for an order authorising the statutory will were satisfied.

Court Disposition

Leave granted to make a statutory will under the Succession Act 2006 and orders made authorising a will in the terms of the draft will provided by the plaintiff.

Orders

  • ['Join the mother as the first defendant and the husband as the second defendant in these proceedings.' 'Order, pursuant to s 19 of the Succession Act 2006, that the plaintiff be granted leave to make an application for an order under s 18 of the Act on behalf of the first defendant.' 'Order, pursuant to s 18 of the...