A Ltd v J (No 2) [2017] NSWSC 896

Supreme Court New South Wales

Medium Neutral Citation: A Ltd v J (No 2) [2017] NSWSC 896 Hearing dates: 30 June 2017 Date of orders: 03 July 2017 Decision date: 05 July 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Grant leave to the plaintiff to make an application on behalf of the Child for an order authorising a will to be made for the Child in terms set out in the annexure to Mr Buchanan's affidavit sworn 26 June 2017. (2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act 2006 (NSW). (3) Direct the plaintiff to liaise with the first defendant's solicitors to prepare a revised will in the form of the will annexed to Mr Buchanan's affidavit but with the following amendments: (a) after the 42.5% share of residue to be left to the Mother, the remainder of the residue be divided in equal shares between the Father and the six siblings; (b) to amend cl 2.3 of the existing will in order to make provision for the trustees of the will, to the extent possible, to adjust the share of revenue to be received by the residuary beneficiaries after having regard to any distributions made by the trustees of the superannuation fund of death benefits to any one or more of the residuary beneficiaries, with the intent that as nearly as possible each of the residuary beneficiaries receives the stipulated share of the total value of the superannuation benefits and the residuary estate; and (c) make provision for the respective residuary bequests such that the shares in the residue of the estate be held on testamentary trusts in accordance with the terms proposed in the draft will of the first defendant, being an annexure to the affidavit of the first defendant's solicitor, Mr Cunich. (4) Note that on the filing of a revised will in accordance with these reasons and the orders I have made, I will make an order in chambers authorising the registrar pursuant to s 21 of the Succession Act 2006 (NSW) to sign and seal with the seal of the Court the said will. (5) Order that the plaintiff's costs of these proceedings be paid out of the estate of the Child on an indemnity basis. (6) Reserve the question of costs in respect of the first and second defendants and direct each to file short written submissions in relation to costs by close of business on Friday, 7 July 2017, with a view to determining that issue on the papers. (7) Order that the names of the Child and the family members be anonymised when the orders are entered on JusticeLink and on the transcript. Catchwords: SUCCESSION – Statutory wills – Succession Act 2006 (NSW), ss 18, 19, 22 Legislation Cited: Protected Estates (Management) Act 1983 (NSW) Succession Act 2006 (NSW), ss 18, 19, 21, 22, 24, 128, Ch 3 Superannuation Industry (Supervision) Act 1993 (Cth), s 10 Cases Cited: A Limited v J [2017] NSWSC 736 AB v CB [2009] NSWSC 680 Banks v Goodfellow (1870) LR 5 QB 549 GAU v GAV [2014] QCA 308 Re Fenwick; Application of JR Fenwick & Re Charles [2009] NSWSC 530 Re Will of Jane [2011] NSWSC 624 Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 Texts Cited: GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, 3rd ed, 2013) NSW Law Reform Commission, Uniform Succession Laws: Intestacy, Report No 116 (2007) Category: Principal judgment Parties: "A Ltd" (Plaintiff) "J" (First Defendant) "R" (Second Defendant) Representation: Counsel: R Williams (Plaintiff) S Chapple (First Defendant) P Wallis with P Boncardo (Second Defendant)