Statutory Will – Nil Capacity

The Supreme Court may act on behalf of a person who lacks testamentary capacity in a situation where if a Statutory Will is not made, their estate will pass according to the laws of intestacy, which might not be appropriate in that particular case. The Court needs to be satisfied that

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


The applicant for a Statutory Will must supply the Court with information about the lack of testamentary capacity of the person. Details of the person’s financial position; who would inherit the person’s estate if they died without a Will and provide a copy of the proposed Will and/or Codicil to the Court.


The Court also must be satisfied that the Applicant is an appropriate person to make the Application; and why the proposed Will and/or Codicil is a Will or Codicil that the person would make if they had capacity to do so.


“The making of a statutory will provides no guarantee that a family provision application will not be made after the death of the notional will-maker but, in practice, it may have a distinct tendency in that direction, especially if the “will” made is the subject of acquiescence on the part of the will-maker’s family and social circle”.

The Estate of the person for whom the application is being made will pay the costs of the application in most instances.

In November 1997, Charles, aged four months, was admitted to hospital with severe head injuries. He was in a critical condition and was placed on life support. The treating physicians were of the opinion that the injuries were deliberately inflicted and were consistent with “Shaken Baby Syndrome”.

The parents did not provide any explanation to the Police as to how Charles came to be injured. They have, however, consistently denied that they injured him. The parents have never been charged with causing Charles’ injuries. However, the surrounding circumstances raise suspicion against them. In 1998 the Children’s Court ordered that Charles be removed from the parents’ care, and parental care was allocated to the Minister for Community Services.

In November 2000, the Victim Compensation Tribunal awarded Charles compensation to be held on trust for him by the Public Trustee until he reaches the age of eighteen years. However, Charles’ life expectancy is diminished because of his immobility and the increasing risk of lower respiratory infections.

The medical evidence shows that Charles disabilities are permanent, and he will never have testamentary capacity. The Minister sought an order for a statutory will for Charles.

If Charles were to die intestate, then due to state law his estate would go to his parents in equal shares. The Minister believes that the parents should not benefit from Charles’ intestacy and that Charles’ whole estate should go to his sister, who is some two years older than Charles. If she predeceases Charles, the Minister proposed that the estate be divided equally between two charities which care for disabled children such as Charles, namely the Sydney Children’s Hospital Foundation and the Spastic Centre.

The Court held that this is a nil capacity case as Charles has never had, and never will have testamentary capacity. The parents had no objection to the proposed statutory will and did not wish to be represented during the proceedings.

The Court was satisfied that not only was it reasonably likely but it is highly probable that a reasonable person faced with Charles’ circumstances would give the whole of the estate to Charles’ sister, and if she predeceased him would choose to provide in his will for a gift to the Sydney Children’s Hospital Foundation and the Spastic Centre.

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