Re the Statutory Will of Colin [2023] NSWSC 294

Re the Statutory Will of Colin [2023] NSWSC 294

The Court was satisfied that Colin lacked testamentary capacity, that the proposed will reflects his reasonably likely testamentary intentions given his relationships, history, and past statements, that the Plaintiff was an appropriate person to apply, and that adequate notice and opportunity to participate was given to persons entitled under intestacy. Therefore, leave was granted to apply, and the statutory will was ordered in the terms proposed, with costs to be paid from Colin’s estate.

Parties
Plaintiff: Phillip; Defendant: Colin
Jurisdiction
Australia
Judgment Date
29 March 2023
Procedural Posture
Application for Statutory Will / Final Orders Following Hearing in Chambers
Outcome
Orders made granting leave for statutory will application and authorising the making of the statutory will as proposed by the Plaintiff; costs to be paid from the estate.
Legal Topics
Statutory Wills, Testamentary Incapacity, Protective Jurisdiction, Intestacy, Representation of Persons Lacking Capacity
Succession Law Equity Statutory Wills Testamentary Incapacity Protective Jurisdiction Intestacy Representation of Persons Lacking Capacity

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Parties

Phillip

Plaintiff

Colin

Defendant

Procedural Posture

Application for Statutory Will / Final Orders Following Hearing in Chambers

Legal Issues

  1. 1 Whether leave should be granted to apply for an order authorising a statutory will for a person lacking testamentary capacity under s 18 Succession Act 2006 (NSW)
  2. 2 Whether the proposed statutory will reflects the reasonably likely testamentary intentions of Colin given his circumstances
  3. 3 Whether the applicant is an appropriate person to apply for the statutory will

Ratio Decidendi

The Court was satisfied that Colin lacked testamentary capacity, that the proposed will reflects his reasonably likely testamentary intentions given his relationships, history, and past statements, that the Plaintiff was an appropriate person to apply, and that adequate notice and opportunity to participate was given to persons entitled under intestacy. Therefore, leave was granted to apply, and the statutory will was ordered in the terms proposed, with costs to be paid from Colin’s estate.

Court Disposition

Orders made granting leave for statutory will application and authorising the making of the statutory will as proposed by the Plaintiff; costs to be paid from the estate.

Orders

  • Leave granted to Plaintiff to apply for an order under s 18 Succession Act 2006 (NSW) on behalf of Colin.
  • A statutory Will is to be made on behalf of Colin in the terms set out in Exhibit A.