By Peter Nevin, Partner at Taylor Smart
In all jurisdictions through Australia, the Supreme Courts may make a statutory will for a person who lacks capacity to make a will.
In 2007, section 40 of the Wills Act 1970 (WA) (Act) was introduced into Western Australian legislation and enables the Court, on an application made by any person, to make an order authorising the making of a will in specific terms approved by the Court for a person who lacks testamentary capacity, is over the age of 18 years and is alive.
The recent decision of R v J  WASC 53 (R v J) is the first decision in Western Australia where the Supreme Court has considered the circumstances in which the Court may make a statutory will. This decision is particularly significant in light of the Court’s warning that distinctions between the Western Australian position and that in other States means that care must be taken in seeking guidance from decided cases in other jurisdictions as to the application of the test to be applied in making statutory wills.
In Western Australia, as distinct from the other States, the likely intentions of the incapable person or any reference to the proposed will being one that would have been, or would be reasonably likely to have been, made by the incapable person is not incorporated into the legislation. All that is required to be considered in Western Australia in this regard is that the statutory will is one which could be made by the incapable person.
When approaching an application for a statutory will, section 42 of the Act provides that a Court must refuse an application if it is not satisfied that:
- the person concerned is incapable of making a valid will or of altering or revoking the person’s will, as the case may be; and
- the suggested will, alteration or revocation, or that will, alteration or revocation is one which could be made by the person concerned if the person were not lacking testamentary capacity; and
- the applicant is an appropriate person to make the application; and
- adequate steps have been taken to allow all persons with a legitimate interest in the application, including persons who have reason to expect any benefit from the estate of the person concerned, to be represented in the proceedings.
His Honour Justice Chaney found in R v J that the task of the Western Australian Court is to make a will which, in the Court’s judgment, reflects an objectively proper disposition of the incapable person’s estate giving weight to, but not being bound by, the wishes of the incapable person insofar as they can be reliably ascertained. Once the above four questions have been satisfied, this task will include a consideration by the Court of the following factors (which are prescribed in section 41 of the Act):
- reasons for the application;
- extent of the estate;
- proposed terms of the statutory will;
- any information available as to the incapable person’s wishes and the contents of any previous wills;
- the likelihood of the incapable person having capacity at some later time;
- the effect of the proposed will on beneficiaries under a previous will or under an intestacy;
- the likelihood of claims being made under the Family Provision Act 1972 (WA);
- the circumstances of persons for whom the incapable person might reasonably be expected to make provision;
- any likelihood that the person concerned might reasonably be expected to make provision for a gift to a charitable or other body; and
- any other relevant matters.
In R v J, the incapable person, “J”, was an elderly woman who lacked capacity to make a will as a result of dementia. J was married to “H”, and the application for a statutory will was made by the only child of this marriage, “R”. J had previously been married but her first husband died, and there were two children of the first marriage, “G” and “K”. Each of the beneficiaries consented to the application made by R.
His Honour Justice Chaney found that the application by R ought to be rejected for a number of reasons, including the following significant reasons:
- there were inconsistencies in the evidence as to the size of the estate, which made it difficult for the Court to identify the likely practical effect of the proposed will;
- in the event that H was to predecease J, the benefit to R under the proposed will would be disproportionate to the benefit to each of G and K;
- there was a significant risk that G and K would receive less than they would be entitled to on intestacy and J’s grandchildren were not provided for in the proposed will;
- the evidence as to J’s wishes was generally unreliable and incomplete; and
- there was no evidence as to the needs, or moral claim, which any of the proposed beneficiaries had on J’s estate.
It is to be noted that His Honour Justice Chaney found that the fact the beneficiaries of the estate consented to the proposed will was not an insignificant factor, however, it was not a determinative factor.
In summary, the decision in R v J  WASC 53 serves as a notice to practitioners that, in order to persuade the Court to make a statutory will, an applicant must lead evidence to satisfy the Court both as to the factors raised in section 42 of the Act, but also in relation to all of the considerations in section 41 of the Act, regardless of whether all potential beneficiaries consent to the making of the statutory will and notwithstanding the relatively lower statutory test in Western Australia.
Taylor Smart’s experienced team can give practical, accurate, easy to understand advice, to guide you to an effective will, giving maximum benefits and protection to your loved ones. If you would like any advice or assistance in relation to this, contact Taylor Smart Lawyers & Notaries on (08) 9325 8266.
About the Author
Peter’s areas of expertise are probate law and litigation, commercial litigation, and employment law. Peter has a particular interest in probate law and litigation, and provides detailed advice on all types of wills, estate disputes and challenges. He is a member of the Elder Law and Succession Planning Committee of the Law Society of Western Australia, and is a full member of the Society of Trust and Estate Practitioners. In 2018, Doyles Guide listed Peter in its list of Leading Wills & Estate Litigation Lawyers – Western Australia as as a leading wills and estate litigation lawyer.