Statutory Will


Jane was born in April 1925 and married her husband, in April 1958. They had three children. In 1962 Jane made a Will. So far as is known, the 1962 Will is Jane’s only Will.

Jane appointed her husband as sole executor and beneficiary provided he survived her for a period of one calendar month. If he did not, Jane appointed her friend, Marion, as the sole executrix. If her husband pre deceased her she left the estate to her children in equal shares.

Marion was also appointed the legal guardian of any infant child or children. Jane’s husband, and Marion predeceased Jane.

In 2006 Jane was diagnosed with dementia that required her admission to be under “strict supervision” in an Aged Care Facility. Jane had lost testamentary capacity by April 2007.

Jane’s husband died intestate on 5 July 2007.

In September 2007, the Public Guardian was appointed Jane’s guardian, with the functions of accommodation, health care, medical and dental treatment and services and remains Jane’s guardian.

The Plaintiff, sought the creation of a statutory Will for Jane; a Statutory Will is one that is made by the Court on behalf of a person who lacks testamentary capacity.

In NSW the Courts have held that if they were to alter or make a new Will s 22(b) of the Act states that

‘the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’.

Therefore, the Court needs to be satisfied that, on the evidence available, there is a ‘fairly good chance’ that the person would have made a Will at some time had not testamentary incapacity supervened. The burden of proof falls on the party making the application for the statutory Will.

In this case the Plaintiff asked that the NSW Trustee & Guardian be executor; that the whole of the deceased’s estate is left to him, in the event that the he does not survive Jane, that her entire estate is to be left to charity.

The Plaintiff believes that Jane would be reasonably likely to make a new will in the form proposed, because his siblings had engaged in what he described as “reprehensible conduct”; had no “need” that is not of her, or his, own making; and that the Plaintiff was, and is, a dutiful son who has made significant sacrifices helping his parents.

In rejecting theses arguments the Court concluded that the Plaintiff’s entitlement under the 1962 Will is sufficient to provide him with secure accommodation.

The Court was not satisfied that, with the exception of appointing an executor, Jane’s likely intention would be to change the 1962 Will at all.

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