Application by Peter Leslie Kelso [2010] NSWSC 357

New South Wales Supreme Court

CITATION : Application by Peter Leslie Kelso [2010] NSWSC 357

HEARING DATE(S) : 22 April 2010

JUDGMENT DATE : 22 April 2010

JUDGMENT OF : Ball J

EX TEMPORE JUDGMENT DATE : 22 April 2010

An order, pursuant to s 19 of the Succession Act 2006 (NSW) ("Act") granting leave to the Plaintiff to make an application on behalf of Hua Tippins ("Hua") authorising a Will to be made for Hua in the terms set out in Annexure A to the Summons (the "Will"). An order that the application proceed forthwith as an application for an order under s 18 of the Act. DECISION : An order, pursuant to s 8 of the Act, approving the terms of the Will. An order authorising a Registrar, pursuant to s 23(1) of the Act, to sign and seal with the seal of this Honourable Court the Will. The costs of the Plaintiff assessed on an indemnity basis to be paid out of the estate of Hua. These Orders to be entered forthwith.

CATCHWORDS : SUCCESSION - Statutory Will - To avoid operation of intestacy rules in circumstances of domestic violence

LEGISLATION CITED : Victims Support and Rehabilitation Act 1996 Succession Act 2006

CATEGORY : Principal judgment

PARTIES : Peter Leslie Kelso

FILE NUMBER(S) : SC 2010/98769

COUNSEL : S A Benson

SOLICITORS : Peter Leslie Kelso, Kelso's The Law Firm

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BALL J

22 APRIL 2010

2010/98769 APPLICATION BY PETER LESLIE KELSO EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application under s 18 of the Succession Act 2006 (NSW) (the Act) for an order authorising a Will to be made on behalf of a person known as Hua Tippins (Ms Tippins). The brief facts relating to this application are these: (a) Ms Tippins is in a hospital and is currently in a coma. She was on a life support system, which I understand has been turned off. The evidence before me suggests that she could die at any time. (b) Ms Tippins came to Australia in 2000 apparently to marry Mr Greg Tippins. It appears she became an Australian citizen and she lived with Mr Tippins for a number of years. During that time she was the subject of domestic violence on a number of occasions. Ultimately, in February 2009, she sought refuge at the Toukley woman's refuge, trading as Elandra Women's and Children's Service in Norah Head, following physical violence against her which caused her substantially to lose the use of her right arm. While there in August 2009, she approached Mr Peter Kelso to obtain advice on a claim under the Victims Support and Rehabilitation Act . Two claims were made. One was successful and led to a judgment in her favour of approximately $9,000. The other claim is the subject of an appeal. (c) It appears that Ms Tippins has not made any Will. The consequence of that is that if she dies Mr Tippins will inherit the whole of her estate. Apart from Mr Tippins there appear to be two other people or entities in Ms Tippins' life. The first is a person known only as China Mum, who resides in China. Although that description is vague, it seems apparent from the inquiries the Gosford Hospital has made that she is capable of being contacted and identified. The other entity in Ms Tippins' life is the women's refuge that I have referred to. It appears from the evidence that has been presented to me that Ms Tippins formed a close bond with the people working at that refuge. 2 An application under s18 of the Act involves two elements. The first is that under s19 of the Act an application for leave to the Court must be made in order to proceed with an application under s 18 of the Act. The second is that an application under s 18 itself must be made. However, under s 20 of the Act the Court may give leave and allow the application for leave to proceed as an application for an order under s 18. I give that leave. 3 Section 19 requires a person making an application for leave to give the Court information set out in that section. The application is made by Mr Kelso who, as I have said, was the solicitor acting for Ms Tippins in relation to her victims compensation claim. The information that must be given to the Court unless the Court otherwise directs is the following: "(a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval, (e) any evidence available to the applicant of the person's wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (g) any evidence available to the applicant of the terms of any will previously made by the person, (h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, (i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person, (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, (l) any other facts of which the applicant is aware that are relevant to the application."