But he's not capable of Making a Will!

One of the essential requirements for making a will is that the testator - the will-maker - has the mental capacity to do so, that they know what they are doing. The same requirement exists for revoking a will, and giving someone an enduring power of attorney does not give the attorney the power to make a will.

Of course there are laws say what will happen to an estate if there is no will - described in an earlier newsletter - but in some situations these may produce an inappropriate outcome. Recently, New South Wales law was changed to enable a judge to make a will for someone who was incapable of making their own will, and two recent Supreme Court decisions have illustrated how the courts might use this power.

There are some pre-requisites which must be established before the court's will-making power can be used. These are:-

• That the person on whose behalf a will is to be made is incapable of making a will. This will require medical evidence as to their condition.
• That the proposed will is, or is reasonably likely to be, one that the person would have made if they had been able to do so.
• That it is appropriate for the court's will to be made,
• That the Application is made by an appropriate person, and
• That anyone with a legitimate interest can have their say before the court.

The court will not make a will if the outcome is the same as if there was no will, as this would be a waste of time and money.

The first of the recent cases is Fenwick's case. Here the incapable person (lets call him R) was 67, and would never regain his testamentary capacity. He owned substantial assets that he had made almost twenty years ago. This provided for his estate to go to his only brother, and if the brother, who was the Applicant, predeceased him, to two cousins. There was evidence that all three had life-threatening medical conditions, and were unlikely to survive R. His only other relative was an uncle over eighty and also unlikely to outlive R, and therefore the estate would be likely to go to the government.

The Application sought a court-made will, by which if the brother and the cousins did die before R, the cousins' children would inherit. There was evidence that R had mixed with the cousins and their children, had no other family ties and no association with a charity. The uncle chose not to appear at court, and the court made the will sought.

The second application, Charles' case, was very sad. Charles was a minor, and under the care of the Department of Community Services. He had suffered severe head injuries when only four months old, consistent with "shaken baby syndrome", and had received substantial compensation through the victims Compensation Scheme. His parents were suspected of having deliberately inflicted his injuries, but were never convicted. They did visit Charles and were affectionate during those visits.

The evidence was that Charles would never have testamentary capacity, and if he died without a will, his parents would inherit. DOCS believed that his parents should not benefit form this situation, and asked that a will be made which left his estate to his sister, his only other relative. If she did not survive him, the estate would be divided between two charities which cared for disabled children. The Court made the will sought.

The lesson - if someone cannot make a will, and either an existing will is inappropriate or the intestacy rules would also produce an inappropriate outcome, a sensible proposal for an appropriate court-made will may well succeed.