Richard d'Apice
9 July 2012

Statutory Wills can easily be overlooked

Richard d'Apice

Special Counsel


Estate Planning, Trusts, Probate and Estate Litigation

Charities and Not-For-Profits

Pro Bono and Corporate Social Responsibility

A statutory will can be a useful method of ensuring that a person’s testamentary intentions can be fulfilled even if that person has lost capacity to make a will.

If a person lacks capacity to make a new will or amend an existing will, what can his/her relatives or friends do to ensure the person’s known or reasonably likely wishes are fulfilled?  While this question might seem a little obscure, it is a problem which often arises for relatives or friends of a person who does not have capacity.  The obvious example is:  “What would Aunty Ethel wish to happen to her house if she had a Will?

The Succession Act 2006 (NSW – the law is similar in other States and Territories) allows the Supreme Court to authorise the making of a Will for a person in just these circumstances.  Before the Court can act it must be satisfied that:

  • the person does not have capacity to make or amend an existing Will; and 
  • the proposed or amended Will is or is reasonably likely to be one which the person would have been made if he or she had capacity.

The Court has the power to take evidence to ensure that the proposed Will accurately reflects the person’s likely intentions.  If there is a dispute as to what the testator would have done, the Court has the power to decide the terms of the Will.  The Succession Act also contains detailed provisions requiring the party applying for the Statutory Will to provide notice to a range of parties of the fact that they are applying for the Will so as to ensure that all persons with a legitimate interest in the disposition of the person’s assets are aware of the application and have the opportunity to be represented in Court.  Most importantly, the Court will want to ensure that the testator’s next of kin on intestacy (where there is no will) have been given notice of the application.

Within the last 10 years, in Victoria, there has been a well-publicised example of the benefits of a Statutory Will.

Maria Korp was found unconscious in the boot of her car.  She had suffered a severe brain injury and lacked capacity to make a Will.  At that time, it was suspected that her husband had attacked her and was involved with her death. Mrs Korp’s existing Will gave her whole estate to him and appointed him an executor.  Justice Mandie approved a new Will for Mrs Korp which removed her husband as executor and beneficiary:  see De Gois v Korp [2005] VSC 326 .

The illustration in Korp is obviously an extreme one.  It will be rare that a person will be a victim of attempted murder. 

A more down-to-earth example is that of a person with no will and no direct family:  see Re Fenwick; application of J R Fenwick [2009] NSWSC 530 . In Fenwick, Justice Palmer authorised a statutory Will for a person to avoid the possibility of him dying intestate and all his assets passing to the State Government.  The consequences of this could be significant, for example, where the person might have significant assets but no relatives entitled to the estate under the intestacy rules so that the assets would pass to the Government as “bona vacantia”. 

The power to make a statutory Will can also remedy unfairness or fraud.  In Re Davey [1981] 1 WLR 164, the Courts in England were asked to make a Statutory Will for a 92 year old lady who had recently married a 48 year old employee of the nursing home in which she had only lived for a few months.  The marriage had revoked her earlier Will in favour of her relatives.  Her relatives were not informed of her marriage and the Court made an order for a Statutory Will in the same terms as her previous Will.  (In NSW, the husband would still have retained his rights to bring a claim for provision against her estate).

Care needs to be taken when considering bringing an application of this type.  It is extremely important to ensure that all interested parties in the application are properly served in accordance with the requirements of the Succession Act.  More importantly, however, it is imperative that evidence be available as to the person’s known or likely wishes regarding the distribution of his/her assets, as the Court must be satisfied that the Will which it is being asked to write properly reflects those wishes or likely wishes.

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