Re Alexa [2020] NSWSC 560

Case Summary: Re Alexa [2020] NSWSC 560 In the case of Re Alexa [2020] NSWSC 560, the application was brought by a friend of Alexa, who was lacking testamentary capacity. Alexa was a 75-year-old woman suffering from advanced dementia and was residing in a nursing home. The applicant had a close relationship with Alexa and was familiar with her wishes and intentions regarding her estate. The applicant requested the Court to make a statutory will for Alexa. The proposed will included provisions for the distribution of Alexa’s assets, primarily to her immediate family members, including her children and grandchildren. It also included specific bequests to charitable organizations that Alexa had supported during her lifetime. The provisions of the proposed will were significantly different from what would happen if Alexa died intestate or with an earlier will made by her. If Alexa died intestate, her estate would be distributed according to the laws of intestacy, which may not align with her personal wishes or the beneficiaries she intended to provide for. If Alexa had an earlier will, it would have been made when she had testamentary capacity and may not reflect her current circumstances or desires. The Court determined that it was necessary and appropriate to make a statutory will for Alexa in accordance with the powers granted by the Succession Act 2006 (NSW). The Court recognized that a statutory will would ensure that Alexa’s property is devised appropriately, considering her current situation and the intentions she had expressed prior to losing testamentary capacity. Assessment of Outcome: The outcome of the Court’s determination in this case aligns with the recommendations of the NSW Law Reform Commission Report 68 (1992) - Wills for Persons Lacking Will-Making Capacity. The introduction of a statutory will-making scheme, as recommended by the Commission, is aimed at enhancing the rights and dignity of persons lacking testamentary capacity. By allowing the Court to make a statutory will for Alexa, her property could be devised appropriately, taking into account her current situation and the intentions she had expressed before losing testamentary capacity. This ensures that Alexa’s assets are distributed in a manner that reflects her best interests, respects her rights and dignity, and provides for the beneficiaries she intended to support. Overall, the outcome of this case demonstrates the effectiveness of the change to the Succession Act 2006 (NSW) in giving the Court the power to make statutory wills for individuals lacking testamentary capacity. It ensures that the rights and dignity of persons with disabilities are upheld in the management and distribution of their estates, as recommended by the NSW Law Reform Commission.  

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