Court Made Wills

Date: Jul 21, 2009
Document Type: Article
In a recent judgment of the Supreme Court in Re Fenwick: Application of JR Fenwick & Re “Charles” [2009] NSW SC530 the Court considered and applied for the first time new provisions of the Succession Act 2006 (NSW), which confer power on the Court to authorise the Registrar to make, alter or revoke a will on behalf of a person who lacks testamentary capacity.
A will made in accordance with the new provisions is called “a statutory will”.
The Court considered two claims; one on behalf of a 60 year old person who had suffered an incapacitating accident and the other on behalf of a child with irreversible brain injury who had received a victim’s compensation award.
An application for a statutory will proceeds in two stages. The first stage requires the Court to grant leave and requires the person making the application to give the Court the following information:
(a)              a written statement of the general nature of the application and the reasons for making it;
(b)              satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order is sought;
(c)              a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order is sought;
(d)              a draft of the proposed will, alteration or codicil for which the applicant is seeking the Court’s approval;
(e)              any evidence of the person’s wishes;
(f)                 the likelihood of the person acquiring or regaining testamentary capacity;
(g)              the terms of any will previously made by the person;
(h)               any person who might be entitled to claim on the intestacy of the person;
(i)                  the likelihood of any family provision application being made;
(j)                  the circumstances of any person for whom provision might reasonably be expected to be made;
(k)               gift for a charitable or other purpose that the person might reasonably be expected to make;
(l)                  any other facts of which the applicant is aware that are relevant to the application.
The above checklist is neither exhaustive nor rigid. 

Examples of Applications Considered in Fenwick

  • An adult with an established family or other personal relationships who has made a valid will but has since lost testamentary capacity. The existing will does not deal with changed circumstances such as the birth of a child or the death of a beneficiary under the exiting will.
  • The incapacitated person is an adult, has formed family and other personal relationships, has made a valid will, has lost testamentary capacity and is now said to express some testamentary intention sufficient to warrant an application for a statutory codicil or a new will.
  • The incapacitated person is a young man who, before suffering incapacity, held a responsible job and possessed significant assets. Assume he has no siblings or wife and children so that his estate would go on intestacy to his parents who are well off. Assume that he has for some years financially supported a friend with a severe disability. There is evidence here of a responsible person who had voluntarily assumed financial responsibly for a person who otherwise would have no claim on him. Intestacy would confer a benefit on his parents, which they do not need and would withdraw from the disabled friend financial support previously given. Had you asked that young man about his testamentary intentions before he was incapacitated, he might have said that he would make a will at some time or other so as to provide at least some benefit to his disabled friend.
  • An elderly man of means who not only dislikes his relatives but fosters disharmony amongst them. He has had ample opportunity to make a will but has not done so. A Court might consider that it is reasonably likely that he wished to die intestate in which case it may not approve a statutory will.
The Court is only now starting to consider applications for Court-make wills.
Fenwick provides a valuable overview of factors a Court is likely to consider when dealing with any application to the Court for a statutory will.
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