We continue our series on Statutory Wills, an emerging area in Estates Law.
In part 1, we reviewed ‘testamentary capacity’ and examined Statutory Wills. Under certain circumstances, courts are empowered to make, alter or revoke a Will on behalf of a person lacking testamentary capacity.
We now look at different types of Statutory Will cases:
Types of Statutory Will Cases
Statutory Will applications can arise in various circumstances:
Lost Capacity – An adult loses capacity, perhaps due to dementia or a brain injury.
- The person probably has various family and friend relationships, may have an existing Will, or may have discussed their testamentary wishes before losing capacity.
- Lost Capacity cases are particularly difficult where the incapacitated person never made a Will. The court will consider whether the person would have made the proposed Will, or any Will at all. Did the person intend to die Intestate?
In a lost capacity case in which the incapacitated person has never made a will, the Court ought not to start with a presumed intention against intestacy. The Court must be satisfied by the evidence that is “reasonably likely” … that the person would have made a will at some time or other … (Re Application of JR Fenwick and Re Charles  NSWSC 530 at , per Palmer J)
No Capacity – The person never had testamentary capacity, including those born with serious cognitive impairments or brain injuries.
- In these cases, courts consider whether it would be desirable for a Will to be authorised for the incapacitated person. They may have received a large compensation payment in relation their injuries. The size of the person’s Estate (probably millions of dollars) makes it reasonably likely that they would have made a will if they had capacity.
If there are [significant Estate] assets … [the Court] should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate. (Fenwick  NSWSC 530 at , per Palmer J)
Pre-empted Capacity – Minors who had some capacity, but lost capacity prior to turning 18.
- Court considers the size of the Estate, whether it is reasonably likely the teenager would have made a Will, and whether they would have made the proposed Will given their relationships.
Evidence of Intentions
The court will consider relevant information when deciding if a proposed Will reflects the true testamentary intentions.
Relevant evidence includes:
- An estimate of the size and nature of the incapacitated person’s Estate.
- The contents of the proposed Will.
- Copies of any previous Wills drafted or signed by the incapacitated person.
- Affidavit evidence of the person’s wishes.
- Confirmation of who would be entitled to the Estate under intestacy or an existing Will – were the court to not make, amend or revoke the Will.
- Family Provisions – who might make a claim? Would the proposed Will making/amendment/revocation provoke a Family Provisions claim, or deter it?
- Confirmation of those who might reasonably expect to be provided for in the Will.
Reasonableness of Orders
Before making Statutory Will orders, the court will need to ensure:
- The incapacitated person is alive when the Statutory Will application (and order) is made. Urgent applications are made when incapacitated people are (terminally) ill, or about to undergo serious medical treatment.
- The application was made by an “appropriate person“. This is generally a:
- Close friend
- Relative who has a relationship with the person, and an interest in their welfare
- Parent who is the incapacitated person’s primary carer, and has a close relationship with them
- Professional involved in the incapacitated person’s affairs (lawyer, accountant, etc.)
- Persons with a proper interest in the person’s Estate are informed about the Statutory Will application.
If you need legal advice about making a Statutory Will application, or any other Wills and Estates matter, Martin Bullock Lawyers can help. Call Greg or Jacqueline on (02) 9687 9322.