In a previous article “Testamentary Capacity” we discussed the test for establishing testamentary capacity, that is, the ability to provide instructions for a valid will.
The Supreme Court of NSW recently utilized in two separate and unrelated cases, for the first reported time, new legislation provisions which allow the Court to authorise a “Statutory Will”.
An applicant, must first “obtain leave of the Court” which simply means “get permission” to apply for an order. In order to be granted leave it needs to be proved firstly that the subject person is, or is likely to be, incapable of making a will. Then it needs to be proved that the proposed will “is reasonably likely to be one that would have been made by the person if the person had testamentary capacity”.
One of the cases involved a person who had a will but was likely to outlive all the nominated beneficiaries and all of his immediate and extended family who would be beneficiaries in the event of an intestacy. This would have seen the estate go to the State of NSW.
Instead of allowing this to occur, the brother of the incapacitated person, sought an order to change the will. He himself was suffering from a life threatening illness and he sought to have the property given to the children of the cousin of the incapacitated person, rather than the Government.
The Court had two considerations. The first was establishing proof of the absence of testamentary incapacity and the second was establishing that it is reasonably likely that if he did have capacity, that the person would have wanted his property to go to his cousin’s children, rather than the Government.
These first two cases were quite simple in nature, in that they were not contested. The real test for the legislation will occur when opposing views are expressed by other possible beneficiaries.
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This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.