In New South Wales, anyone wishing to make a Will must:-

1. be over the age of eighteen; and
2. have the necessary testamentary capacity.

When someone lacks testamentary capacity to draft a Will, the Succession Act 2006 provides an alternative to the person dying intestate. The Supreme Court of NSW can authorise the creation of a Statutory Will to express the testamentary intentions of someone lacking the capacity to make a Will.

What is Testamentary Capacity?

Testamentary capacity is a legal term defining whether a person has sound mind, good memory, and competent understanding when they make a Will. Those lacking testamentary capacity can either be described as having:

• nil capacity (where they have never had the competency to form testamentary intent), or
• lost capacity (where they have in the past been capable, but subsequently lost that capacity through impairment).

In NSW a person is assumed to have testamentary capacity unless proven otherwise. A person is judged to lack testamentary capacity if they do not:

• know or remember what assets they have to be disposed of in a Will; or
• understand the purpose and effect of making a Will; or
• comprehend that certain people have a moral right to inherit from their deceased estate.

What is a Statutory Will?

The Supreme Court of NSW can authorise the creation of a Statutory Will for someone who lacks the mandatory testamentary capacity. The Court will only do this when

1. a person lacks testamentary capacity to create or amend a Will, and
2. the proposed testamentary instrument is reasonable and the likely intent of the person if they had testamentary capacity.

In such a case, the Court will ask for submissions of evidence as to the person’s likely testamentary intentions. In the event of contradictory submissions, the Court can decide the terms of the Will.

Anyone who intends to apply for a Statutory Will must first notify specific parties. This is to ensure that any person with a legitimate and significant interest in the deceased estate is aware of the application and has an opportunity to be heard before the Court. The most important notification is to the next of kin, as a Statutory Will would override their right of inheritance under intestate succession legislation.

Statutory Wills: when are they necessary?

Circumstances in which someone should apply for a Statutory Will include:-

• If a family member or significant other lacks the testamentary capacity to make a Will;
• The person lacking testamentary capacity has no pre-existing Will;
• They have a sizeable estate and high-value assets; and
• The person’s current Will is out of date or does not provide for loved ones or significant others.

Who can apply for a Statutory Will?

Only certain people can make an application for a statutory will on behalf of someone who lacks testamentary capacity. The court must be satisfied that the applicant is an appropriate person. Eligible people are often a family member or someone who already has charge of the vulnerable person’s physical or legal welfare., such as:

• A de facto partner or spouse;
• a parent or guardian;
• a primary caregiver; and
• someone with legal authority to act for the person (eg a solicitor).

Case study

In Re Fenwick: Application of J R Fenwick (2009), the Court authorised a Statutory Will for a person who was likely to die intestate because he lacked the testamentary capacity to update his Will. The testator, Robert Fenwick, was a sixty-year-old man with a net value in excess of two million dollars. It was highly likely he would have no surviving close relatives after his death and that the state government would seize his assets as bona vacantia.

Robert made a Will in 1987 and ten years later suffered a head injury at work that left him with permanent cognitive impairment and unable to manage his own affairs. The Guardianship Tribunal appointed his older brother John to manage Robert’s finances. John was also Robert’s full time carer.

The 1987 Will left Robert’s entire estate to John, or if John predeceased Robert, to any child of Robert’s. Robert had had no children since he made the Will and was unlikely to have children in future given his medical condition and age. Under the Will, if Robert died childless, the estate would be left to any surviving cousins.

All of the surviving beneficiaries of the Will were older than Robert and had life-threatening medical conditions. Robert would most likely outlive all the beneficiaries and the estate would be left intestate. John applied to the court for a statutory codicil to the existing Will that if the beneficiaries of the Will predeceased Robert, the cousins’ children would inherit.

The court was convinced of the first requirement for a Statutory Will, that the testator lacked testamentary capacity and could no longer make a valid Will. All interested parties were informed of the application for the Statutory Will. The proposed codicil would prevent an older uncle from inheriting under intestate succession law if he outlived Robert. The uncle was informed of the application and made no submission to the Court opposing the Statutory Will.

Robert had regular contact with the proposed new beneficiaries, but no other close ties or relationships. He had no long-standing relationships with any charitable organisation that could reasonably expect to benefit from his Will. The Court ultimately found that the statutory codicil was an arrangement that Robert would be reasonably likely to make if he had sufficient capacity.

Here to Help

We can help you assess whether you meet the requirements for a Statutory Will application, and help you with the application. Please contact us to discuss any testamentary or estate matter.