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What Is A Statutory Will? (NSW)

In New South Wales, there are two eligibility requirements for anyone wishing to make a will. First, the testator must be over the age of eighteen. Second, they must have the necessary testamentary capacity. When someone lacks testamentary capacity to draft a will, there is provision under the Succession Act 2006 for an alternative to the person dying intestate. The Supreme Court can authorise the creation of a statutory will to express the testamentary intentions of someone who lacks the capacity to make a will. This article outlines the purpose of a statutory will in NSW and specifies who can ask for the creation of such an instrument and in what circumstances.

What Is Testamentary Capacity?

Testamentary capacity is a legal term defining the mental acuity of a person, specifically whether they have sound mind, good memory, and competent understanding at the time they make a will. Those who lack testamentary capacity can either be described as having nil capacity, where they have never had the competency to form testamentary intent, or be found to have lost capacity, where they have in the past been capable, but subsequently lost that capacity through impairment.

Under Australian law, a person is assumed to have testamentary capacity unless proven otherwise. A person is judged to be testamentary incapable if:

  • They do not understand the purpose and effect of making a will; or
  • They do not know or remember what assets they have to be disposed of in a will; or
  • They do not 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 make this provision under specific circumstances, when there is evidence that the person lacks testamentary capacity to create or amend a will; and 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 has the authority to 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 that must be made is to the next of kin, as the right of inheritance under intestate succession legislation will be overridden by the statutory will.

Statutory Wills: When Are They Necessary?

Someone should apply for a statutory will under the following circumstances:

  • If a family member or significant other lacks the testamentary capacity to make a will;
  • The testamentary incapable person has no pre-existing will;
  • They have a sizeable estate and high-value assets; and
  • The current will of the person 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. These eligible people are typically a family member or someone who already has charge of the vulnerable person’s physical or legal welfare. The court must be satisfied that the applicant is an appropriate person, such as:

  • a de facto partner or spouse;
  • a parent or guardian;
  • a primary caregiver;
  • a 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 a person who was likely to die intestate because he lacked the testamentary capacity to update his will. There was a high likelihood that the man would have no surviving close relatives after his death and that the state government would seize his assets as bona vacantia. The testator in this case was a sixty-year-old man with a net value in excess of two million dollars. Robert Fenwick made a will in 1987 and ten years later suffered a head injury at work that left him with permanent cognitive impairment. This damage left him unable to manage his own affairs. The Guardianship Tribunal appointed his older brother John to manage Robert’s finances, and John also cared for Robert on a full-time basis.

The old will left his entire estate to his brother John, or if John predeceased Robert, to any child of the testator. Robert had no children in the intervening years nor was there any likelihood of his having children in the future given his age and medical condition. The will specified that if Robert died without children, 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. It is very likely that Robert would in fact outlive all the beneficiaries and the estate would be left intestate. John applied to the court for a statutory codicil to the existing will, with a provision that if the beneficiaries of the will predeceased Robert, the children of the cousins 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 properly 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 in opposition to 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 has sufficient capacity.

The Contested Wills Team at Armstrong Legal can help you assess whether you meet the requirements for a statutory will application, and help you with the application and attendant processes. Please get in touch with our team or call 1300 038 223 to discuss any testamentary, estate or probate matter.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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