Small v Phillips (No 2) [2019] NSWCA 268

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Small v Phillips (No 2) [2019] NSWCA 268 Hearing dates: 16 August 2019 Date of orders: 25 September 2019 Decision date: 04 November 2019 Before: Brereton JA; McCallum JA; Emmett AJA Decision: Orders made on 25 September 2019 set out in Appendix 1. Catchwords: SUCCESSION – Whether the Court should make an order under the Succession Act 2006 (NSW) for a statutory will to be made on behalf of the fourth respondent – Whether a will in accordance with the Summary Reasons is, or is reasonably likely to be, a will that would have been made by the fourth respondent if she had testamentary capacity – Whether it is appropriate for an order authorising such a will to be made – Whether the standard of review is met for the Court to re-exercise the jurisdiction conferred by s 18 of the Succession Act 2006 (NSW) Legislation Cited: Corporations Act 2001 (Cth) Charitable Trusts Act 1993 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Succession Act 2006 (NSW) Cases Cited: Boulton v Sanders & Ors (2004) 9 VR 495 GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 House v The King (1936) 55 CLR 499 J v Lieschke (1987) 162 CLR 447; [1987] HCA 4 Protective Commissioner v D (2004) 60 NSWLR 513 Rebenta Pty Ltd v Wise [2007] NSWSC 1332 Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 Re Fulop (1987) 8 NSWLR 679 Re The Will of Bridget [2018] NSWSC 1509 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Small v Phillips [2019] NSWCA 222 W v H [2014] NSWSC 1696 Category: Principal judgment Parties: Anthony Phillip Small (Appellant) Sharonne Rose Phillips (First Respondent) Robert Ellis Phillips (Second Respondent) Sharonne Rose Phillips and Robert Ellis Phillips in their capacity as private managers of the estate of Millie Phillips (Third Respondent) Millie Phillips by her Tutor Michaela Money (Fourth Respondent) Representation: Counsel: C J Birch SC with J Mack (Appellant) Submitting Appearance (First Respondent) L Ellison SC (Second Respondent) J Needham SC (Third Respondent) M K Meek SC (Fourth Respondent)