What is a statutory will?

The Succession Act 2006 (NSW) (“Act”) (s18) empowers the Supreme Court of NSW to authorise (or revoke) a will on behalf of a person who lacks testamentary capacity.  Statutory wills are based on the intentions of the person, as best they can be assessed, and take into account various factors set out in the Act.

Statutory wills are most commonly made for people who suffer from disabilities and/or conditions related to advanced age.

Where a person, having made a will, loses testamentary capacity and cannot make a later will or codicil in order to deal with changed circumstances AND there is no one who can make a successful claim under the relevant legislation to absorb the lapsed bequest – there must be total or partial intestacy. Intestacy is the condition of the estate of a person who has died without having made a valid will or other binding declaration. There are rules of intestacy which govern how an estate is to be distributed in these circumstances

Relevant legislation and provisions

The following sections of the Succession Act 2006 (NSW) Chapter 2:

Section 18             Court may authorise a will to be made, altered or revoked for a person without testamentary capacity

Section 19             Information required in support of application for leave

Section 22            The court must refuse leave to make an application for an order under section 18 unless the court is satisfied about certain matter

Imposing a statutory will

The application to the Court must satisfy the following criteria:

Testamentary capacity

The test of testamentary capacity is outlined within the case of Banks v Goodfellow

For a person to have testamentary capacity he or she must:

  • understand the nature of a will and its effect;
  • comprehend the extent of the estate to be disposed of under the will; and
  • understand the claims on the estate to which he/she ought to give effect.

Evidence required

Medical reports by experts (such as those from a treating physician, neuropsychologist or geriatrician) provide the best evidence to satisfy the court as to a person’s lack of testamentary capacity. It is recommended that the medical expert also provide an opinion as to whether the person is likely to acquire or regain capacity in the future. Evidence from family members and friends concerning testamentary capacity does hold some weight. However, independent evidence of medical practitioners is often preferred by the court. A medical condition, such as the diagnosis of dementia should be evidenced by medical reports and opinions.

Testamentary intentions of the incapacitated person

Per section 22(b) of the Succession Act 2006 (NSW), a court will authorise a proposed will if it is reasonably likely to be one that would have bene made by the person if he/she had testamentary capacity.  In the case of Re Application of JR Fenwick and Re Charles, Justice Palmer considered intention “intention” in three types of cases in which the nuances of each scenario influence the questions to be posed by the court.  The three types of cases are, lost capacity cases, nil capacity cases and pre- emptied cases

A lost capacity case is one in which the incapacitated person is an adult who has lost capacity (for example, as a result of dementia or brain injury). The person is likely to have already formed various personal relationships with family and friends. Prior to losing capacity this person may have already made a valid will or discussed their testamentary wishes, but since losing testamentary capacity, has not expressed, or is incapable of expressing any testamentary intention to deal with changed circumstances (such as the death of a beneficiary under the exiting will or the birth of a child). 

There can be no subjective intention in a nil capacity case, as this person has never had any testamentary capacity. The considerations are therefore entirely objective. These types of cases include those people who suffered brain injuries or serious cognitive impairment at an early age. The court is mindful that it may be desirable for a will to be authorised for this category of incapacitated person as the minor may, for example, have received a large compensation settlement related to the cause of their brain injury and the size of the estate (often in the millions of dollars) makes it reasonably likely that he or she would make a will if they had capacity.

This category of case covers the middle ground between the lost capacity and nil capacity cases. It is for those minors who have had some capacity during their lifetime to develop and form relationships, but who have lost capacity (for example, by way of an accident as a teenager) prior to turning 18. The ‘test’ appears to have two elements: consideration of size of the estate and, if it is large, it is reasonably likely the teenager would have made a will rather than die intestate (objective element); and is it reasonably likely the teenager would have made the proposed will given his or her relationships and history (subjective element).

Evidence of intentions

Under section 22(b) of the Succession Act (NSW) and relevant caselaw, an application to the court must satisfy the following criteria:

  1. The person lacks testamentary capacity;
  2. The proposed will (or alternation or revocation) accurately reflects the intentions of the person as if they had testamentary capacity; and
  3. It is reasonable in all the circumstances for the court to authorise the will and make the orders.

In the case of lost capacity, the Court may be satisfied as to what the incapacitated person is “reasonably likely” to have done, in the light of what is known of his/her relationships, personality, history and the size of the estate. The previous will may give a good indication of the incapacitated person’s testamentary choices and preferences. Therefore, the previous will can be used by the court as a ‘yardstick’ against which to consider the previous testamentary intentions of the person and the proposed will. Affidavit evidence can also be used to provide expressions of testamentary intentions and details of the relationships this person had with others.

Examination of individual provisions within the legislation and relevant case law suggests the following evidence regarding the following can be provided to the court:

  • reasonable estimate of the size and nature of the estate;
  • draft of the proposed will;
  • copies of any previous wills drafted or signed by the person;
  • evidence concerning the wishes of the person;
  • confirmation of who will be entitled to the estate if the person were to die without a will (intestacy);
  • any persons who may make family provision claim against the estate; and
  • the persons reasonably expected to be provided for in the will, including any carers or charities.

Question of reasonableness

Prior to making the order, the court will need to ensure the following:

  • that the application has been made by an appropriate person, such as a family member, close friend, carer, trustee, guardianship or professional involved in the incapacitated person’s affairs.
  • that adequate steps have been taken to inform persons with a proper interest in the estate of the application, including those who may have reason to expect a benefit or provision from the estate.
  • The relevant person is alive when the order is made. A statutory will cannot be authorised if the person has died, or someone who is about to undertake serious medical treatment that may result in death.