Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530

Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530

A court authorizing a statutory will under the Succession Act 2006 (NSW) must apply s 22(b) according to the type of case: in lost capacity cases, it is concerned with actual or likely subjective intention; in nil capacity cases, an objective assessment determines what a reasonable person in the circumstances would do. The court approved the statutory codicil and will in both cases as reasonably likely to be what would have been made if the persons had testamentary capacity, with orders to prevent the estates vesting in the Crown or going to persons suspected of harming the incapacitated person, and ensuring notice to interested persons.

Jurisdiction
Australia
Judgment Date
12 June 2009
Procedural Posture
Originating Application for Statutory Will / Final Judgment After Hearing Applications for Leave and Orders
Outcome
Applications granted
Legal Topics
['statutory Wills' 'testamentary Capacity' 'administration of Estates' 'family Provision' 'intestacy']
['succession Law' 'equity' 'probate'] ['statutory Wills' 'testamentary Capacity' 'administration of Estates' 'family Provision' 'intestacy']

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Procedural Posture

Originating Application for Statutory Will / Final Judgment After Hearing Applications for Leave and Orders

Legal Issues

  1. 1 ['Interpretation of statutory will provisions under Succession Act 2006 (NSW)' 'Criteria for court approval of statutory will for persons lacking testamentary capacity' 'Approach for lost capacity and nil capacity cases' 'Application of s 22(b) Succession Act 2006 (NSW)']

Ratio Decidendi

A court authorizing a statutory will under the Succession Act 2006 (NSW) must apply s 22(b) according to the type of case: in lost capacity cases, it is concerned with actual or likely subjective intention; in nil capacity cases, an objective assessment determines what a reasonable person in the circumstances would do. The court approved the statutory codicil and will in both cases as reasonably likely to be what would have been made if the persons had testamentary capacity, with orders to prevent the estates vesting in the Crown or going to persons suspected of harming the incapacitated person, and ensuring notice to interested persons.

Court Disposition

Applications granted

Orders

  • ['In Re Fenwick: Leave granted for application, application for statutory codicil proceeds, codicil terms approved, Registrar authorized to sign and seal codicil, costs paid out of estate.' "In Re 'Charles': Leave granted for application, application for statutory will proceeds, will terms approved, Registrar...