What to Do When You Can’t Legally Write a Will in NSW
- Justeen Dormer
- 1 day ago
- 3 min read
Estate Planning
For a Will to be considered legally valid, the person making it must have 'testamentary capacity'. This means they need to understand what a Will is, know what assets they own, and recognise the people who might have a claim on their estate.
But what happens if someone loses this capacity, and their existing Will (or the law if there’s no Will) would distribute their assets in a way they wouldn't have wanted?
In New South Wales, there's a solution. The NSW Supreme Court can approve a "statutory Will" on behalf of a person who lacks the capacity to make one themselves, as long as they are still alive. This article explains how this process works.
Applying for a Statutory Will
To get a statutory Will, an application must be made to the Court for permission, or 'leave'. According to section 19 of the Succession Act 2006 (NSW), the applicant must provide the Court with specific information, including:
Evidence that the person lacks testamentary capacity.
A reasonable estimate of the person's estate value.
Any information about the person’s wishes.
A draft of the proposed Will.
If the Court grants leave, it can often finalise the statutory Will in the same hearing, based on section 20 of the Act, without needing a second court date.
When Will the Court Grant Leave?
The Court will only grant leave if it is satisfied of five key things listed in section 22 of the Succession Act 2006 (NSW):
There’s reason to believe the person lacks the capacity to make a Will.
The proposed Will is likely one the person would have made if they had capacity.
Making the order is appropriate.
The person applying is a suitable applicant.
All interested parties have been properly represented.
Let's look at the two requirements that are often the most difficult to prove.
Proving the Will Reflects the Person's Wishes
This is a key hurdle. The court must be satisfied that the proposed Will is "reasonably likely" to be what the person would have wanted if they had capacity.
So, what does "reasonably likely" mean?
In Re: Fenwick; Application of JR Fenwick [2009], the court described it as a "fairly good chance."
In Re: Will of Jane [2011], it was defined as more than a mere possibility, but not necessarily "more likely than not."
The NSW Court of Appeal in Small v Phillips No. 2 [2019] suggested it allows for a "margin for judgement" when considering the person's intentions.
Essentially, the court needs convincing evidence that the proposed Will aligns with the person’s known wishes and values.
Proving it's "Appropriate" to Make the Order
The Court also needs to agree that making the order is appropriate in the circumstances. This can be a grey area, but court decisions offer some guidance.
For example, in GAU v GAV [2016], the court found it was appropriate to change a Will to remove gifts to the testator's son's ex-wife, as this was a change she likely would have made herself if she had capacity.
While the exact definition is still evolving, the court will consider whether the proposed changes are fair and reflect what the person would have wanted.
Why This Matters
The power of the Supreme Court to create statutory Wills is a vital protection. Before this, little could be done if a person lost capacity, potentially leading to unfair outcomes for their loved ones.
Because this is a developing area of law, getting expert legal advice is crucial. If you or a loved one is facing this situation, understanding your rights and the court process is the first step.
