Statutory will authorised to be made for person on life support

Introduction

The Supreme Court of New South Wales in Re LS [2017] NSWSC 1667 has, on an urgent application by the de facto partner of a person on life support, authorised the making of a statutory will on the person’s behalf pursuant to Pt 2.2 Div 2 of the Succession Act 2006 (NSW) (“SA”). The person was unconscious, had no realistic prospect of recovery and life support was expected to be terminated in a matter of days.

Part 2.2 Div 2

Part 2.2 Div 2 of the SA (ss18 – 26) contains provisions governing the making of court-authorised wills or “statutory wills” for persons who lack testamentary capacity. Under s 18, the Court may, on application, make an order authorising, amongst other things, a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity. Section 19 of the SA requires that the leave of the Court be obtained for the making of an application to the Court for an order under s 18 and sets out the information that must be given to the Court in support of an application for leave to apply for such an order. Section 22 provides that the Court must refuse leave to apply for an order under s 18 unless the Court is satisfied about certain matters.

Background

The person in question, LS, had recently suffered an aneurysm and stroke, and was unconscious and on life support. The medical opinion was that LS had no realistic prospect of recovery and plans were under way to terminate life support after LS’s sisters had arrived from New Zealand to say goodbye. It was expected that life support would be terminated within a few days’ time.

The Plaintiff, who was LS’s de facto partner, made an urgent application to the Supreme Court which sought that the Court authorise the making of a will for LS that:

• gave all of LS’s New Zealand real property to LS’s mother and sisters;
• gave $50,000 to each of the Plaintiff’s two sons out of the New Zealand assets; and
• gave the residue of LS’s assets to the Plaintiff.

The application was supported by the Plaintiff’s sons. The evidence adduced on behalf of the Plaintiff included the following:

• The Plaintiff and LS, who was originally from New Zealand, had been in a de facto relationship for 20 years.
• The Plaintiff’s two sons had lived with the Plaintiff and LS since the commencement of the de facto relationship. LS had no children of her own.
• Earlier in 2017, the Plaintiff and LS had discussed their respective testamentary wishes and dispositions, and LS had said that she would like the Plaintiff to obtain LS’s half interest which she had in a property on the South Coast of New South Wales together with the residue of her NSW assets, and that LS’s mother and sisters, who lived in New Zealand, should receive all of her assets in New Zealand.
• The New Zealand assets were worth approximately $800,000, and the NSW assets approximately $500,000.
• There was no evidence of any prior will of LS.

Decision

The application was heard by Rein J who said (at [5]) that if LS died intestate the Plaintiff would, under NSW law, inherit all of LS’s NSW assets, and possibly all her New Zealand assets as well.

His Honour was satisfied that the Plaintiff had, pursuant to s 19 of the SA, given to the Court the information required to support her application for leave (at [6]-[12]).

His Honour then referred to the matters in s 22 of the SA and found that four of the five matters about which the Court was required to be satisfied had been satisfied (at [13]-15]):

• LS was incapable of making a will (see s 22(a)).
• There was reason to believe that the proposed will was one which LS would have made if she had had testamentary capacity (see s 22(b)).
• The Plaintiff was the appropriate person to apply for the order to be made (see s 22(d)).
• It was appropriate for the orders to be made (s 22(c)).

As to the fifth matter, set out in s 22(e) of the SA, his Honour observed at [16] that this required the Court to refuse leave to make an application for an order under s 18 unless the Court was satisfied that “adequate steps” had been taken to allow representation of all persons with a legitimate interest in the application, including persons who had reason to expect a gift or benefit from the estate of the person in relation to whom the order was sought.

His Honour noted (at [17]) that neither LS’s mother nor her sisters had been informed of the application but that there was evidence that LS’s mother was not, due to her being upset at LS’s condition, in a position to receive information about the proposed will. His Honour also noted that the Plaintiff had given evidence that she thought that LS’s sisters, if informed of the application, might think that the Plaintiff was trying to make a “grab” for LS’s money.

His Honour accepted that, generally speaking, it would be necessary for a person’s mother and siblings to be informed of the application for there to be “adequate steps” taken as referred to in s 22(e), but considered, having regard to the following important matters, that adequate steps had been taken in the circumstances (at [17]):

• LS had lived in a de facto relationship with the Plaintiff for 20 years.
• The proposed will not only did not exclude LS’s mother and sisters but positively provided that they were to receive more than half of LS’s net assets. Therefore, the persons who might have reason to expect a gift or benefit would have that expectation met.
• If the will was not made there was a risk to LS’s mother and sisters that they would receive no benefit from LS’s estate.
• The person with the most interest in the application was the Plaintiff, and the persons next interested were the Plaintiff’s sons.
• The matter was highly urgent and ‘adequacy’ was context dependant.

His Honour added (at [18]) that it was of “crucial significance” that the interests of LS’s mother and sisters were actually advanced, rather than adversely affected, by the proposed will and so considered that if they had been informed of the details of the application, they would have had reason to support it rather than to oppose it.

Accordingly, his Honour concluded (at [19]), “not without some hesitation”, that it was appropriate to authorise the making of the will.