A Daughter’s Application [2023] NSWSC 219

Supreme Court New South Wales

Medium Neutral Citation: A Daughter's Application [2023] NSWSC 219 Hearing dates: 31 January 2023 Date of orders: 31 January 2023 Decision date: 15 March 2023 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Leave granted to make a statutory will under the Succession Act 2006. Orders made approving the terms of the will set out in Annexure A [not published]. Catchwords: EQUITY – Statutory wills, Succession Act, s 18, 19, 20, 22 – loss of capacity – beneficiaries – urgent application in Equity duty list seeking leave to apply for an order authorising a will to be made on behalf of a person who is intestate and who it is contended lacks testamentary capacity ("the proposed testator") – the plaintiff is the daughter of the proposed testator – under the proposed will the plaintiff would receive the largest share of the estate, with the balance divided between the proposed testator's husband and her grandchildren – whether the proposed will is, or is reasonably likely, to be one that would be made by the proposed testator, if she had capacity – whether the information required to be provided to the Court by Succession Act, s 22 for leave to make the application has been satisfied – whether the Court should exercise the jurisdiction conferred by Succession Act 2006, s 18. Legislation Cited: Succession Act 2006, ss 18-26 Cases Cited: Banks v Foodfellow (1870) LR 5 QB 549 Re Fenwick (2009) 76 NSWLR 22 Small v Phillips (No 2) [2019] NSWCA 268 Category: Consequential orders Parties: Plaintiff: Daughter First defendant: Mother Second defendant: Father Representation: Counsel: Plaintiff: H. Morrison