Secretary, Family and Community Services v Mary [2018] NSWSC 538

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Family and Community Services v Mary [2018] NSWSC 538 Hearing dates: 26 April 2018 Date of orders: 26 April 2018 Decision date: 26 April 2018 Jurisdiction: Equity - Probate List Before: Kunc J Decision: Summons dismissed Catchwords: SUCCESSION - wills, probate and administration - the making of a will – application for statutory will for seriously ill child – "nil capacity" case - small estate with uncertain possibility of damages award – no evidence as to prospects of success or likely amount of damages (if any) – Succession Act 2006 (NSW), ss 18, 20, 22 Legislation Cited: Succession Act 2006 (NSW) Civil Liability Act 2002 (NSW) Cases Cited: Griffiths v Kerkemeyer (1997) 139 CLR 161; [1977] HCA 45 Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 22; [2009] NSWSC 530 Secretary, Department of Family and Community Services v K [2014] NSWSC 1065 Category: Principal judgment Parties: Secretary, Family and Community Service (Plaintiff) Mary (Defendant) Representation: Counsel:

V. Hartstein (Plaintiff)

Solicitors:

Crown Solicitor (Plaintiff) File Number(s): 2018/129777 Publication restriction: No

ex tempore Judgment (revised)

Summary 1. This is an application which has been brought on at short notice before me in the Duty List for the making of a statutory will under s 18 of the Succession Act 2006 (NSW) (the "Act"). The application is brought by the Secretary of the New South Wales Department of Family and Community Services (the "Secretary") because the proposed will is to be made on behalf of a child who is currently under the parental responsibility of the Minister of Family and Community Services (the "Minister"). I will refer to that child as "Chris". The defendant is Chris' birth mother, to whom I shall refer as "Mary". All names in these reasons are pseudonyms and no disrespect is intended by the use of given names. 2. Chris is an 11-year-old boy who, at the time I am delivering these reasons, is on a ventilator in hospital. For reasons which I will set out in more detail in a moment, his prognosis is very poor. There is no dispute that, were he to die, his estate (whatever it might comprise) would go to Mary under the laws of intestacy. The statutory will which the Court is invited to make on behalf of Chris provides for his estate to be divided equally between his mother and his six half-siblings, all of whom are minors. 3. Ms V Hartstein of Counsel appeared for the Secretary. Mary appeared for herself by telephone from the hospital. She was there because a further medical case conference in relation to Chris' care is to take place later this morning. 4. By way of summary, at the conclusion of Ms Hartstein's submissions I was of the view that this was a case where leave to make the application should be granted under s 19 of the Act, but I indicated that even if leave were to be granted, I would refuse the application. On further short reflection, I have decided that the same reasons which inform my conclusion as to the ultimate exercise of the Court's discretion also mean that this is not a case where leave can be granted for the application to be brought. 5. The fundamental difficulty with this application relates to the potential size of Chris' estate. At the moment, his estate would consist of slightly less than $5,000 currently being managed by the New South Wales Trustee & Guardian ("NSWTG"). That amount represents compensation for an incident which I will describe below. 6. A statement of claim against the State of New South Wales has been prepared on behalf of Chris claiming damages for personal injuries arising out of that same incident. There is no evidence that the statement of claim has yet been filed. I will assume that it will be. However, the claim faces a number of problems which suggest that even if it yields damages for Chris or his estate, they may not be anywhere near as large as those propounding the claim may think they will be. 7. Quite apart from that difficulty, there is a more basic problem with the application because there is absolutely no evidence which would enable me to form any conclusion as to what those damages might be. For example, there is no opinion of counsel on the question. In the absence of any such information, I am of the view that I cannot rationally answer this question about the proposed will: "Is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?" (Re Fenwick; Application of JR Fenwick; Re "Charles" (2009) 76 NSWLR 22; [2009] NSWSC 530 at [176] per Palmer J ("Re Fenwick"). I am therefore unable to be satisfied of the matter referred to in s 22(b) of the Act. 8. Furthermore, where there is such uncertainty over the possible size of the estate, I have reached the conclusion, not without some reluctance, that I cannot be satisfied that "it is or may be appropriate for the order to be made" (see s 22(c) of the Act). 9. The Court's lack of satisfaction about those two matters means that, in accordance with s 22 of the Act, leave to make the application must be refused. Furthermore, even if I were wrong in that conclusion, the same considerations would mean that, in the exercise of the Court's discretion under ss 18 and 20 of the Act, I would not make the order in any event.