This article looks at the purpose of a statutory will in NSW, who can ask for one to be created, and in what circumstances.

In New South Wales, the eligibility requirements for anyone wishing to make a will are that the testator must:

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

What is testamentary capacity?

Testamentary capacity is a legal term defining the mental acuity of a person. That is, whether they have good memory, sound mind, and competent understanding at the time they make a will. Those lacking testamentary capacity have either:

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

A person is assumed to have testamentary capacity unless proven otherwise. A person is testamentary incapable if they do not:

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

What is a Statutory Will?

When someone lacks testamentary capacity to make a will, the Succession Act 2006 offers 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 who lacks mandatory testamentary capacity.

The Court will only make this provision when there is evidence that:

1. the 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.

The Court will invite the submission as to the person’s likely testamentary intentions. If there are 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 anyone with a significant and legitimate interest in the deceased estate is aware of the application and has the opportunity to be heard in Court. The most important notification to be made is to the next of kin, as a statutory will would override their right of inheritance under intestate succession legislation.

When is a Statutory Will necessary?

An application for a statutory will should be made If a family member or significant other:

1. lacks the testamentary capacity to make a will;
2. has a sizeable estate and high-value assets; and
3. has no pre-existing will, or their 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 are eligible to apply for a statutory will on behalf of someone who lacks testamentary capacity. The court must be satisfied that the applicant is an appropriate person, such as a:

1. de facto partner or spouse;
2. primary caregiver;
3. parent or guardian; or
4. person 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 Robert Fenwick, who was likely to die intestate because he lacked the testamentary capacity to update his will. The testator in this case was a sixty-year-old man with a net value in excess of two million dollars. It was highly likely that 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. Ten years later he suffered a head injury which left him with permanent cognitive impairment. He was unable to manage his own affairs and the Guardianship Tribunal appointed his brother John to manage his finances. John was Robert’s full-time carer.

Robert’s will left his entire estate to his brother John, or if John predeceased him, to any child of the testator. Robert had no children in the intervening years and he was unlikely to have any in future. The will provided that if Robert died childless, the estate would be left to his cousins, if either survived him.

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

The Court found that Robert lacked testamentary capacity. 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 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 found that the statutory codicil was an arrangement that Robert would be reasonably likely to make if he had sufficient capacity.

We can help you assess whether you meet the requirements for a statutory will application and assist you with the application. Contact us to discuss any testamentary, probate or estate matter.