Re the Statutory Will of Colin [2023] NSWSC 294

Supreme Court New South Wales

Medium Neutral Citation: Re the Statutory Will of Colin [2023] NSWSC 294 Hearing dates: In Chambers Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pursuant to s 19 of the Succession Act 2006 (NSW), that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of the Defendant, the person lacking testamentary capacity. (2) Orders, pursuant to s 18 of the Succession Act, that a statutory Will be made on behalf of the Defendant in the terms set out in Ex. A. (3) Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed. (4) Orders pursuant to s 23(1)(b) of the Succession Act, that the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court. (5) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of the Defendant. (6) Orders that these orders be entered forthwith. (7) Orders that the directions hearing listed on 11 April 2023 be vacated. 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, with a clause leaving the residue of the estate to the Plaintiff, is, or is reasonably likely to be, a will that would have been 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 Legislation Cited: Civil Procedure Act 2005 (NSW) s 71 Succession Act 2006 (NSW) Div 2 of Pt 2.2, ss 18-23 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 Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading As Institute Of Rheumatology And Orthopaedics and Ors Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital/trading as Institute Of Rheumatology And Orthopaedics 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 the Will of Robert [2022] NSWSC 1037 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 Wills v NSW Trustee [2022] NSWSC 1098 Texts Cited: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) Category: Principal judgment Parties: Phillip (Plaintiff) Colin (Defendant) Representation: Counsel: G McNally SC (Plaintiff)