Re The Will of Alexa [2020] NSWSC 560

Supreme Court New South Wales

Medium Neutral Citation: Re The Will of Alexa [2020] NSWSC 560 Hearing dates: In Chambers and on the papers Date of orders: 14 May 2020 Decision date: 14 May 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings. (2) Orders, pursuant to s 19 of the Succession Act 2006 (NSW) ("the Act"), that the Plaintiff have leave to apply for an order under s 18 of the Act. (3) Orders pursuant to s 18 of the Act, that a will be made on behalf of Alexa, the person lacking testamentary capacity, in the form set out in Ex SW1 ("the Statutory Will"). (4) Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal with the seal of the Court the Statutory Will, being Ex SW 1. (5) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alexa. (6) Orders that these orders shall be entered forthwith. Catchwords: SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Incapacitated person has never had capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff who is the mother, and the principal beneficiary, named in the Will, with balance being divided between other family members is, or is reasonably likely to be, a will that would be made by the person who lacks testamentary capacity if she had that capacity – Whether it is appropriate for an order authorising such a will to be made – Financial manager of the person lacking testamentary capacity not a party to the proceedings but supports and approves of the terms of the proposed statutory Will as do all other family members Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 NSW Trustee and Guardian Act 2009 (NSW), s 38 Succession Act 2006 (NSW), ss 18, 19, 20, 21, 22, 23, 24, 25, 57, 128, 129, Sch 1 cl 3 Cases Cited: A Ltd v J (No 2) [2017] NSWSC 896 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 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 Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 Estate Cockell; Cole v Paisley [2016] NSWSC 349 Jeavons v Chapman (No 2) [2009] SASC 3 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Fenwick; Application of J R Fenwick; Re 'Charles' (2009) 76 NSWLR 22; [2009] NSWSC 530 Re K, JL [2016] SASC 53 Re M's Codicil [2018] NSWSC 936 Re MP's Statutory Will [2019] NSWSC 331 Re The Will of Bridget [2018] NSWSC 1509 Re Will of Jane [2011] NSWSC 624 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 Small v Phillips [2019] NSWCA 222 Small v Phillips (No 2) [2019] NSWCA 268 Small v Phillips (No 3) [2020] NSWCA 24 Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31 Texts Cited: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) Category: Principal judgment Parties: CBP (Plaintiff) Representation: Solicitors: Diamond Conway (Plaintiff) File Number(s): 2020/00076841