Statutory wills - for when testamentary capacity is lacking

Division 2 (in particular, section 18) of the Succession Act 2006(NSW) allows the Court to authorise wills to be made, altered or revoked for persons who do not have testamentary capacity , whilst they are still alive (s18(3)) – this includes a minor who does not have the capacity to make a Will (s18(4)).  Following the making or alteration of the Will, the Will is deposited with the Registrar (s18(6)), although failure to deposit the Will does not make the Will invalid (s18(7)).

What information is required to support an application?

A Statutory Will can only be made with leave of the Court.  A request to the Court for leave to make an application for a Statutory Will to be made must include the following information (as set out in section 19):

• a written statement of the general nature of the application and the reasons for making it;
• satisfactory evidence of the lack of testamentary capacity of the subject person;
• a reasonable estimate (based on evidence available) of the size and character of the subject person’s estate;
• a draft of the proposed Will, alteration or revocation for which the application is seeking the Court’s approval;
• any evidence of the subject person’s wishes;
• any evidence of the likelihood of the subject person acquiring or regaining testamentary capacity;
• any evidence of any Will previously made by the subject person;
• any evidence of any persons who might be entitled to claim on the intestacy of the subject person – see Shire Legal’s earlier blog on intestacy here;
• any evidence of the likelihood of a family provision application being made in respect of the property of the subject person – see Shire Legal’s earlier blogs on family provision here;
• any evidence of the circumstances of any person for whom provision might reasonably be expected to be made by the Will of the subject person;
• any evidence of a gift for a charitable or other purpose that the person might reasonably be expected to make by will; and
• any other relevant facts.

What does the Court consider?

Before granting leave to make an application, the Court must be satisfied of all of the following (as set out in section 22):

• there is reason to believe that the subject person is, or is reasonably likely to be, incapable of making a Will; and
• the proposed Will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the subject person if they had testamentary capacity; and
• it is or may be appropriate for the order to be made; and
• the applicant is an appropriate person to make the application; and
• adequate steps have been taken to allow those with a legitimate interest in the application, to make representations – including those who have reason to expect a gift or benefit from the subject person’s estate.

Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190 (2 September 1990)

The subject person – 77 year old Mr Huenerjaeger, with dementia.  Estimated value of his assets – $6.6 million

The applicant – Mr Huenerjaeger’s 91 year old long time friend and partner.  The Court was satisfied that the applicant was Mr Huenerjaeger’s spouse (pursuant to section 104)

Earlier Will – a 1967 Will dividing the Estate between the applicant and Mr Huenerjaeger’s mother (now deceased), however the Will cannot be located.

Proposed alteration – nominating the applicant’s cousin (being a close friend of Mr Huenerjaeger) as a substitute beneficiary, in the event that the applicant pre-deceased Mr Huenerjaeger

Considerations – in the absence of a Statutory Will, there was a risk of Mr Huenerjaeger passing away intestate, and based on the evidence before it, the Court could not determine to whom the estate would pass in that event.  However, the Court was not satisfied that an authorised Will should include a substitutionary clause gifting the Estate to the applicant’s cousin.  It noted that the only evidence of Mr Huenerjaeger’s testamentary intentions, prior to losing capacity, was the 1967 Will.  There was no evidence to suggest that he would have considered nominating the applicant’s cousin as a substitute beneficiary.  Rather the evidence showed that he had “steadfastly” and “deliberately” refrained from making any new Will, even when prompted by the applicant.  The Court was not prepared to authorise a Statutory Will “merely because to do so would avoid difficulty in ascertaining the persons entitled to his estate on intestacy, or to allay the concern that the [applicant] specifically has in that regard.” 

Orders – The Court ordered for a Will without the substitutionary clause, although it did provide for a clause appointing a substitute executor (NSW Trustee and Guardian, noting the fact that the 1967 Will appointed the then Public Trustee as the sole executor and trustee).