Secretary. Department of Family & Community Services v K [2014] NSWSC 1065

  Case Summary: Secretary, Department of Family & Community Services v K [2014] NSWSC 1065 In the case of Secretary, Department of Family & Community Services v K [2014] NSWSC 1065, the application was brought by the Secretary of the Department of Family & Community Services on behalf of K, who was lacking testamentary capacity. K was a 60-year-old woman with an intellectual disability and was residing in a supported accommodation facility. The applicant requested the Court to make a statutory will for K. The proposed will included provisions for K’s personal belongings to be distributed among her siblings, with the remainder of her estate to be used for her ongoing care and support. The provisions of the proposed will were significantly different from what would happen if K died intestate or with an earlier will made by her. If K died intestate, the laws of intestacy would determine the distribution of her estate, which may not align with her personal wishes or the needs of her siblings. If K had an earlier will, it would have been made when she had testamentary capacity, and therefore, may not reflect her current circumstances or desires. The Court determined that it was appropriate to make a statutory will for K, taking into consideration her best interests and the recommendations of the NSW Law Reform Commission Report 68 (1992) - Wills for Persons Lacking Will-Making Capacity. The Court recognized that a statutory will would enhance the rights and dignity of persons with disabilities by ensuring their property is devised appropriately, considering their current situation. 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). The introduction of a statutory will-making scheme, as recommended by the Commission, seeks to enhance the rights and dignity of persons lacking testamentary capacity. By allowing the Court to make a statutory will for K, her property could be devised appropriately, considering her current situation and personal wishes. This ensures that K’s assets are distributed in a manner that reflects her best interests and respects her rights and dignity. It safeguards her estate from being subject to the laws of intestacy or an outdated will made when she had testamentary capacity. 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 when it comes to the management and distribution of their estates.    

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