Re the Will of Robert [2022] NSWSC 1037

Supreme Court New South Wales

Medium Neutral Citation: Re the Will of Robert [2022] NSWSC 1037 Hearing dates: In Chambers and on the papers Date of orders: 3 August 2022 Decision date: 03 August 2022 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings. (2) Orders, pursuant to s 19 of the Succession Act 2006 (NSW) ("the Act"), that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of Robert, the person lacking testamentary capacity. (3) Orders pursuant to s 18 of the Act, that a statutory Will be made on behalf of Robert, in the terms set out in Ex SW1. (4) Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed. (5) Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court. (6) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Robert. (7) Orders that the Plaintiff is to serve on the NSW Trustee and Guardian, a copy of these orders and a copy of the statutory Will of Robert. (8) Orders that these orders be entered forthwith. Catchwords: SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Person lacking capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff, the financial manager of the person lacking testamentary capacity, who is a friend, and one of the beneficiaries, named in the proposed Will, with balance being divided equally between two other friends is, or is reasonably likely to be, is a will that would be made by the person who lacks testamentary capacity if he had that capacity – Whether it is appropriate for an order authorising such a will to be made – Report obtained from the NSW Trustee and Guardian because it has oversight over the Plaintiff as the private financial manager of Robert – Order made subject to person to be appointed as executor of statutory Will Legislation Cited: Civil Procedure Act 2005 (NSW) s 71 Court Suppression and Non-publication Orders Act 2010 (NSW) ss 8(1)(a), (c) and (e) Succession Act 2006 (NSW) Div 2 of Pt 2.2, ss 18-26, 57 Supreme Court Act 1970 (NSW) s 11 Cases Cited: A Ltd v J (No 2) [2017] NSWSC 896 Application by Peter Leslie Kelso [2010] NSWSC 357 Argiro v Lagozino [2017] SASC 185 Banks v Goodfellow (1870) LR 5 QB 549 Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550 CJ v AKJ (2015) 16 ASTLR 24; [2015] NSWSC 498 Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 Jeavons v Chapman (No 2) [2009] SASC 3 Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 Re M's Codicil [2018] NSWSC 936 Re MP's Statutory Will [2019] NSWSC 331 Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190 Re The Will of Alexa [2020] NSWSC 560 Re Will of Jane [2011] NSWSC 624 Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 Small v Phillips (No 2) [2019] NSWCA 268 Small v Phillips (No 3) [2020] NSWCA 24 Texts Cited: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) Category: Principal judgment Parties: WHGW as the appointed Guardian and Financial Manager of Robert (Plaintiff) Representation: Counsel: M Tibbey (Plaintiff)