Re The Will of Bridget [2018] [2018] NSWSC 1509

Re The Will of Bridget [2018] [2018] NSWSC 1509

The Court refused to grant leave for a statutory will because the Plaintiff failed to satisfy the statutory test that the proposed will was one Bridget was reasonably likely to have made if she had testamentary capacity. The evidence of Bridget’s wishes was vague and uncorroborated, and there were many possible dispositions given her relationships and the lack of clear, consistent testamentary intention. Accordingly, the application was dismissed.

Jurisdiction
Australia
Judgment Date
09 October 2018
Procedural Posture
Application Under Succession Act 2006 (nsw) for Leave to Apply for Statutory Will / Application for Leave and Substantive Relief (final Hearing)
Outcome
Application refused. Summons dismissed.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'intestacy' 'costs in Succession Proceedings']
['succession Law' 'equity'] ['statutory Wills' 'testamentary Capacity' 'intestacy' 'costs in Succession Proceedings']

Case Brief

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Procedural Posture

Application Under Succession Act 2006 (nsw) for Leave to Apply for Statutory Will / Application for Leave and Substantive Relief (final Hearing)

Legal Issues

  1. 1 ['Whether leave should be granted to apply for an order authorising a statutory will under s 18 of the Succession Act 2006 (NSW)' 'Whether the proposed will is, or is reasonably likely to be, one that Bridget would have made if she had testamentary capacity' 'Whether the applicant is an appropriate person to apply' 'Whether adequate representation has been made for all persons with a legitimate interest' 'Appropriateness of order given lack of testamentary capacity and evidence of subjective intention']

Ratio Decidendi

The Court refused to grant leave for a statutory will because the Plaintiff failed to satisfy the statutory test that the proposed will was one Bridget was reasonably likely to have made if she had testamentary capacity. The evidence of Bridget’s wishes was vague and uncorroborated, and there were many possible dispositions given her relationships and the lack of clear, consistent testamentary intention. Accordingly, the application was dismissed.

Court Disposition

Application refused. Summons dismissed.

Orders

  • ['Leave to make the application for the order under s 19(1) of the Succession Act 2006 (NSW) is refused.' 'The amended Summons filed on 1 February 2018 is dismissed.' "There is no order for the Plaintiff's costs; he is to bear his own costs of the proceedings." 'The Plaintiff, within 14 days, to repay to the estate...