Crawley, Re the Estate of [2010] NSWSC 618

Crawley, Re the Estate of [2010] NSWSC 618

Ms Crawley had irretrievably lost testamentary capacity through severe dementia, and the evidence showed it was reasonably likely that, if she had capacity, she would not wish her estate to pass to the Crown but would give the major benefit to Mr McCosker, the only surviving close family relationship, together with an increased benefit and gift over to the named charity. The proposed will was therefore reasonably likely to be one she would have made and should be approved under s 18(1)(a).

Jurisdiction
Australia
Judgment Date
09 June 2010
Procedural Posture
Application Under S 18 Succession Act 2006 (nsw) for a Statutory Will / Principal Judgment; Final Order After Leave Under S 19(1)
Outcome
Statutory will approved.
Legal Topics
['statutory Will' 'lost Capacity Case' 'testamentary Capacity' 'bona Vacantia']
['succession'] ['statutory Will' 'lost Capacity Case' 'testamentary Capacity' 'bona Vacantia']

Case Brief

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Procedural Posture

Application Under S 18 Succession Act 2006 (nsw) for a Statutory Will / Principal Judgment; Final Order After Leave Under S 19(1)

Legal Issues

  1. 1 ['Whether Ms Crawley lacked testamentary capacity for the purposes of s 22(a) of the Succession Act 2006 (NSW).' 'Whether the proposed statutory will was reasonably likely to be one Ms Crawley would have made if she had testamentary capacity under s 22(b).' 'Whether it was reasonably likely that Ms Crawley would have intended her estate to vest in the Crown as bona vacantia rather than make the proposed dispositions.']

Ratio Decidendi

Ms Crawley had irretrievably lost testamentary capacity through severe dementia, and the evidence showed it was reasonably likely that, if she had capacity, she would not wish her estate to pass to the Crown but would give the major benefit to Mr McCosker, the only surviving close family relationship, together with an increased benefit and gift over to the named charity. The proposed will was therefore reasonably likely to be one she would have made and should be approved under s 18(1)(a).

Court Disposition

Statutory will approved.

Orders

  • ['Final order under s 18(1)(a) approving the proposed will.' 'Orders in terms of the Short Minutes of Order.']