Re The Will of Bridget [2018] [2018] NSWSC 1509

Supreme Court New South Wales

Medium Neutral Citation: Re The Will of Bridget [2018] [2018] NSWSC 1509 Hearing dates: 30 August 2018 Date of orders: 06 September 2018 Decision date: 09 October 2018 Jurisdiction: Equity Before: Hallen J Decision: The Court orders that:

(a) Leave to make the application for the order under s 19(1) of the Act be refused;

(b) The amended Summons filed on 1 February 2018 be dismissed;

(c) There be no order for the Plaintiff's costs, to the intent that he is to bear his own costs of the proceedings;

(d) The Plaintiff, within 14 days of the making of these orders, is to repay to the estate of Bridget, the amount of $12,177.45;

(e) In the event that the Plaintiff does not repay the amount of $12,177.45 within 14 days, interest calculated at Supreme Court rates on unpaid judgments, shall be paid by him, calculated from the date of the making of these orders until the date of payment in full;

(f) The Defendants' costs, calculated on the ordinary basis, be paid out of the estate of Bridget; otherwise, the Defendants are to bear their own costs of the proceedings;

(g) Exhibits may be returned in accordance with the Rules. Catchwords: SUCCESSION — Wills, probate and administration — Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of an aged person lacking testamentary capacity under Succession Act 2006 (NSW) — Person's only Will leaving whole estate to her husband who predeceased her — Defendants would take under operation of the rules of intestacy as nephews of the incapacitated person — Relationship between the incapacitated person and Defendants — Long period of no contact between them — Proposed Will would leave biggest share of the estate to the Plaintiff who is Attorney under enduring Power of Attorney and cousin of person lacking testamentary capacity — Balance to other cousins and to charities in different proportions — Whether a number of possibilities as to the contents of the proposed Will the person lacking testamentary capacity would, or would be likely to, make, exist — Whether possibility is "reasonably likely" Legislation Cited: NSW Trustee and Guardian Act 2009 (NSW) Succession Act 2006 (NSW) Cases Cited: AB v CB [2009] NSWSC 680 Application by Peter Leslie Kelso [2010] NSWSC 357 Argiro v Lagozino [2017] SASC 185 Banks v Goodfellow (1870) LR 5 QB 549 Boulton v Sanders (No 2) [2003] VSC 409 Brian Michael Burgess v Burgess [2018] WASC 279 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Burns v The Estate of Troy Mitchell Burns a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550 Denise Hilda Burgess as administrator of the estate of Department of Agriculture and Rural Affairs v Binnie [1989] VR 836; [1989] VSC 836 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 Hill v Hill (No 2) [2001] VSC 135 In the Will of Wilson (1897) 23 VLR 197 Jeavons v Chapman (No 2) [2009] SASC 3 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Re APB, Ex parte Sheehy [2017] QSC 201 Re B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552 Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 Re Gillam [2016] VSC 5 Re HMF [1976] Ch 33 Re K, JL [2016] SASC 53 Re K's Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711 Re RB, a protected estate family settlement [2015] NSWSC 70 Re Will of Jane [2011] NSWSC 624 Re Will of Jane (No 2) (2011) 8 ASTLR 423; [2011] NSWSC 883 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 Sharp v Adam [2006] WTLR 1059; [2006] EWCA 449 Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31 Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22 W v H [2014] NSWSC 1696 Category: Principal judgment Parties: GFD (Plaintiff) MGR (first Defendant) MLR (second Defendant) Representation: Counsel: Mr D C Price (Plaintiff) Mr J E Armfield (Defendants)