Re Will of Jane [2011] NSWSC 624

Re Will of Jane [2011] NSWSC 624

Leave to apply for a statutory will was refused because the evidence did not satisfy the Court that the proposed will was or was reasonably likely to be one Jane would have made if she had testamentary capacity; the existing 1962 will accurately reflected Jane's longstanding testamentary intentions, and there were no justified grounds to exclude her other children.

Jurisdiction
Australia
Judgment Date
20 July 2011
Procedural Posture
Application for Statutory Will and Leave Under the Succession Act 2006 / Final Decision Application for Leave and Substantive Order Refused; Summons Dismissed
Outcome
Application for leave to apply for a statutory will refused; summons dismissed; costs arguments stood over.
Legal Topics
['statutory Wills' 'testamentary Capacity' 'probate Proceedings' 'family Provision' 'representation of Persons Lacking Capacity']
['equity' 'probate'] ['statutory Wills' 'testamentary Capacity' 'probate Proceedings' 'family Provision' 'representation of Persons Lacking Capacity']

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Procedural Posture

Application for Statutory Will and Leave Under the Succession Act 2006 / Final Decision Application for Leave and Substantive Order Refused; Summons Dismissed

Legal Issues

  1. 1 ['Whether leave should be granted to apply for a statutory will for Jane under the Succession Act 2006' "Whether the draft statutory will proposed by the Plaintiff reflects Jane's likely testamentary intentions if she had capacity" "Whether appointing an independent corporate executor (NSW Trustee & Guardian) is appropriate or reasonably likely to have been Jane's intention" 'Whether the Plaintiff is an appropriate person to bring the application' 'Whether the conduct of the Defendants would have led Jane, had she retained capacity, to exclude them from her will']

Ratio Decidendi

Leave to apply for a statutory will was refused because the evidence did not satisfy the Court that the proposed will was or was reasonably likely to be one Jane would have made if she had testamentary capacity; the existing 1962 will accurately reflected Jane's longstanding testamentary intentions, and there were no justified grounds to exclude her other children.

Court Disposition

Application for leave to apply for a statutory will refused; summons dismissed; costs arguments stood over.

Orders

  • ['Leave under s 19(1) of the Succession Act 2006 refused for both the proposed and alternative statutory will.' 'Order that the Summons be dismissed.' 'Proceedings stood over for further argument as to costs if required.']