Sultana, Application of

[2010] NSWSC 915

CITATION:	Sultana, Application of [2010] NSWSC 915
HEARING DATE(S):	16 August 2010
JUDGMENT DATE :	16 August 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	16 August 2010
DECISION:	Statutory will approved.
CATCHWORDS:	SUCCESSION – STATUTORY WILL – clear “nil capacity” case where person would never have testamentary capacity – estate derived from gift by mother – person looked after by mother and sister – no other possible claimants to person’s testamentary bounty.
LEGISLATION CITED:	Succession Act 2006 (NSW) – s 18, s 19
CATEGORY:	Principal judgment
CASES CITED:	Re Fenwick [2009] NSWSC 530
PARTIES:	Lina Carmen Sultana (Plaintiff)
FILE NUMBER(S):	SC 2010/232799
COUNSEL:	M. McAuley (Plaintiff)
SOLICITORS:	Mario J. Azzopardi (Plaintiff)

2010/121799 Application of Sultana

JUDGMENT – Ex tempore

16 August , 2010

1 This is an application for leave to apply for a statutory will under s 19(1) of the Succession Act 2006 (NSW) and, simultaneously, for approval of the will under s 18(1) of the Succession Act. The Plaintiff is the sister of the person for whom the will is sought. I will refer to the Plaintiff, without intending disrespect, as Lina, and to her brother as Vincent. The circumstances very briefly are as follows.

2 Vincent was born with Down's Syndrome. He is now in his forties. He has always been incapable of looking after himself. I have had regard to the material provided to the Guardianship Tribunal in an application for the appointment of Lina as Vincent's financial manager. I have also had the opportunity to observe Vincent, who is in Court today. I am satisfied that Vincent has from birth lacked the intellectual capacity needed to be capable of making a will. I am satisfied that he will never attain testamentary capacity. This is, in short, an application in a “nil capacity” case, to use a phrase employed in Re Fenwick [2009] NSWSC 530.

3 Vincent's only asset is the sum of approximately $63,000 which is held in a term deposit account in Lina’s name on trust for him. That money was originally provided by Vincent's mother in order to enable Vincent to be looked after properly. The money was originally in a term deposit account in which Vincent himself was shown as the account holder in trust for his sister. That was a mistake which has now been rectified.

4 The uncontested evidence is that Vincent has always lived at home and has always been looked after by his mother and by Lina. The family is not in good financial circumstances. The members of the family who might have some claim to Vincent's estate if he were to die intestate, in addition to his mother and Lina, are Vincent’s father, two other sisters and a younger brother. The evidence is that the father left the family some twenty years ago and has not been involved with the family since then. The other siblings, likewise, have not been involved with the family for well over fifteen years and have not had any responsibility for looking after Vincent. The evidence is that Vincent has been looked after solely by his mother and by Lina.

5 Having regard to the size of Vincent's estate now, some $60,000, and having regard to the fact that that whole estate is derived from a gift from the mother, I do not think it is appropriate that the other potential beneficiaries of Vincent's estate be given notice of these proceedings. This is a very clear and simple case in which the small amount of this estate should go to the mother in the first instance, if she survives Vincent, as she is in poor financial circumstances. If the mother predeceases Vincent, then the estate should go to the sister who has looked after him for many years, Lina. I am quite satisfied that, had Vincent had testamentary capacity, it is reasonably likely that this is the disposition that he would have made.

6 All of the requirements of s 19 of the Act have been sufficiently satisfied. It is quite clear that there is no point in delaying further the approval of the will after the granting of leave so that I may proceed to make those orders now. Accordingly, I make orders in terms of paragraphs 1, 2, 3 and 4 of the Summons.

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