Crawley, Re the Estate of [2010] NSWSC 618

New South Wales Supreme Court

CITATION : Crawley, Re the Estate of [2010] NSWSC 618

HEARING DATE(S) : 7 June 2010

JUDGMENT DATE : 9 June 2010

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

DECISION : Statutory will approved.

CATCHWORDS : SUCCESSION – STATUTORY WILL – "Lost capacity case" – whether reasonably likely that incapacitated person would have intended estate to vest in Crown as bona vacantia – whether reasonably likely that she would have made dispositions of proposed will.

LEGISLATION CITED : Succession Act 2006 (NSW) – s 18, s 19, s 22

CATEGORY : Principal judgment

CASES CITED : Fenwick, Re [2009] NSWSC 530

PARTIES : Richard Anthony Francis McCosker (Plaintiff)

FILE NUMBER(S) : SC 2010/098832

COUNSEL : Ms R. Kako (Plaintiff)

SOLICITORS : Shanahans Solicitors (Plaintiff)

2010/099832 Re Estate of Crawley

JUDGMENT

9 June , 2010

1 This is an application under s 18 Succession Act 2006 (NSW) that a statutory will be made for Ms E.J. Crawley. The applicant is Ms Crawley's brother-in-law, Mr McCosker. 2 For reasons that will appear, I am satisfied that there is no person who ought to made a defendant in the proceedings and that the only other party which may be interested in the application has been given due notice of it. 3 Ms Crawley is now ninety-three years of age. She has never married and has never had children. She has no parents, siblings, aunts or uncles who are living. She presently resides in a nursing home. An examination conducted by a psychiatrist in March this year shows, without any doubt, that Ms Crawley has severe dementia. There could be no question that she has irretrievably lost testamentary capacity, so that the requirement of s 22(a) of the Act is satisfied. 4 Mr McCosker was married to Ms Crawley's sister, Ethel, who died in 2009. Mr McCosker was appointed as Ms Crawley's attorney under a General Power of Attorney granted in 1997 and since then he has managed all her financial affairs. 5 Ms Crawley made a will in February 1997. It was prepared by a solicitor and there is no suggestion in the evidence that Ms Crawley lacked testamentary capacity at that time. 6 In her will, Ms Crawley appointed her sisters, Ellen and Ethel, as joint executors, gave $500 each to Mr McCosker and a named charity and gave the residue to Ellen and Ethel. There was no gift over in case, as has happened, her sisters pre-deceased her. Accordingly, if Ms Crawley were to die without a statutory will being made, her estate would pass on intestacy and, there being no next of kin who could take, it would vest in the Crown as bona vacantia. 7 This is a "lost capacity" case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed or is incapable of expressing, any testamentary intention to deal with the changed circumstances: see Re Fenwick [2009] NSWSC 530, at [160]. In that case I made some remarks which are apposite to the present case: "In such a case the Court may be satisfied as to what the incap-acitated person is 'reasonably likely' to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person's testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances." 8 Mr McCosker now proposes a statutory will which: