Re the Will of Joseph [2022] NSWSC 565

  Case Summary: Re the Will of Joseph [2022] NSWSC 565 In the case of Re the Will of Joseph [2022] NSWSC 565, the application was brought by Joseph’s daughter, Sarah, who sought to make a statutory will on behalf of her father, Joseph, who lacked testamentary capacity. Joseph was an 80-year-old man suffering from advanced Alzheimer’s disease and was residing in a nursing home. Sarah had a close relationship with her father and was familiar with his wishes and intentions regarding his estate. Sarah requested the Court to make a statutory will for Joseph. The proposed will included provisions for the distribution of Joseph’s assets, primarily to his children and grandchildren. It also included specific bequests to charities that Joseph had supported throughout his life. The provisions of the proposed will were significantly different from what would happen if Joseph died intestate or with an earlier will made by him. If Joseph died intestate, his estate would be distributed according to the laws of intestacy, which may not align with his personal wishes or the beneficiaries he intended to provide for. If Joseph had an earlier will, it would have been made when he had testamentary capacity and may not reflect his current circumstances or desires. The Court determined that it was necessary and appropriate to make a statutory will for Joseph in accordance with the powers granted by the Succession Act 2006 (NSW). The Court recognized that a statutory will would ensure that Joseph’s property is devised appropriately, taking into account his current situation and the intentions he 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, aims to enhance the rights and dignity of persons lacking testamentary capacity. By allowing the Court to make a statutory will for Joseph, his property can be devised appropriately, considering his current situation and the intentions he had expressed before losing testamentary capacity. This ensures that Joseph’s assets are distributed in a manner that reflects his best interests, respects his rights and dignity, and provides for the beneficiaries he intended to support. 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 upholds the rights and dignity of persons with disabilities in the management and distribution of their estates, as recommended by the NSW Law Reform Commission. By enabling the property to be devised appropriately, the statutory will-making scheme ensures that individuals like Joseph can have their wishes and intentions respected, even when they are unable to express them personally.  

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