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.

Statutory Will – Pre-empted capacity

A is fourteen years old and lacks testamentary capacity. He was born with a rare congenital brain malformation treatment for which is the insertion of a cerebral shunt to drain fluid from the brain. At around two years’ of age, there was a malfunction with the shunt which led to A suffering a severe brain injury.

As a result of a medical negligence claim A was awarded substantial compensation; the value of A’s trust fund was $3,711,912.54 in September 2019. The trust includes a residential property (“the Property”) valued at $526,000, which was purchased in early 2011 in A’s name with the approval of the trustee for the purpose of being modified to meet his special needs.

A’s father OR had been violent and abusive towards A’s mother (on one occasion in the front of A, causing him stress); had been found guilty of crimes and sentenced to imprisonment.

OR had moved into the property preventing it being used as a home for A, notwithstanding that it had been modified to accommodate A’s special needs. Consequently, A’s mother and her children were required to continue to live in inappropriate public housing, which often caused A distress.

A has two siblings, a nine-year-old and an 8-year-old brother. A’s mother died on 3 May 2019 as a consequence of metastatic oesophageal cancer. Consequently, OR is A’s only surviving parent.

On 26 July 2019, the Children’s Court of New South Wales made orders that all aspects of parental responsibility for A and his two siblings are allocated to the Minister for Communities and Justice until further order.

The Secretary of the Minister’s Department made an urgent application for a ‘statutory will’ for A due to the deterioration in his health proposing that A’s siblings be named as his sole beneficiaries, excluding OR who would inherit if A died intestate.

To make an order under s18 of the Succession Act the Court must be satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) 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, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

The Secretary relied upon an affidavit made by A’s mother in December 2018, in Family Court proceedings in support of an application for a parenting order designed to ensure that, after her impending death, the three children were cared for by someone other than OR.

In an affidavit A’s mother deposed that she had always been the carer for A and the other two children, that OR never supported A, and had indicated to her that if she could no longer care for A, OR would place A in respite care.

Due to its urgent nature OR was not notified of the application and was not served; as a consequence, he was not given ‘an opportunity to appear’

If the Court had refused to deal with the application and AR had died before OR could be found and given proper notice of the application, the opportunity for the Court to apply this beneficial legislation would have been lost.

The Court was satisfied that (had he been capable of considering the matter) A would have wanted to bestow a substantial testamentary benefit on his siblings, even though it is less clear that he would have excluded his father completely.

Despite these misgivings, the Court made the orders sought; observing that due to the urgency OR was absent from the hearing, and may have a right to apply for an order setting aside or varying the orders that have been made.

Statutory Wills – on the grounds of lost capacity

Millie Phillips (Millie) is a 90-year-old woman who had three children by her former husband; two daughters Sharonne and Lynette (who died in tragic circumstances some time ago) and a son Robert. Sharonne has one child Anthony, and Robert has five children.

Millie whose estate is estimated to be worth approximately $90 million, suffered a stroke in April 2018 following which she has lacked testamentary capacity. Millie is presently being cared for at a facility and requires a high degree of care for daily living. Her cognition is severely impaired.

On 14 May 2018, orders were made appointing Sharonne and Robert as Millie’s financial managers under the Guardianship Act.

Millie had made at least two wills; on 13 June 1972 (the 1972 Will), with codicils made on 5 December 1973 and 13 July 1978 and on 2 November 2001 (the 2001 Will).

The 2001 Will revoked the 1972 Will. However, the original of the 2001 Will has not been located and Millie was heard to say, several times after the date of the 2001 Will, that she had no will – giving rise to the presumption that she destroyed the 2001 Will intending to revoke it.

Between November 2015 to April 2017, Millie had several conversations with Carolyn Deigan, a solicitor, in which she stated that she did not have a Will, did not know who to leave her money to and did not know who to trust to be her executors.

Carolyn prepared a draft will dated 22 May 2017 (the Draft Will). Although Millie did not execute any will she subsequently expressed her intentions in various discussions.

Millie and Anthony regularly engaged in very general discussions about her estate. In late 2016 or early 2017, Millie told Sharonne and Anthony that she had been thinking of leaving him a substantial asset in her Will but had been unsure about whether to tell him because of a fear that that knowledge might spoil Anthony and stop his drive and ambition.

Anthony brought an application for a statutory will; s18 of the Succession Act 2006 provides that a Court may authorise a will to be made, altered or revoked for a person without testamentary capacity – the Court must satisfy the following criteria:

  • The proposed will (or alteration or revocation) accurately reflects the intentions of the person as if they had testamentary capacity, and
  • the person lacks testamentary capacity, and
  • it is reasonable in all of the circumstances for the court to authorise the will and make the orders.

At first instance, the Court dismissed the application with costs, as Millie’s procrastination about making a Will suggested that her testamentary intentions weren’t ‘reasonably likely’.

On appeal, the Court considered that Millie making the Draft Will notwithstanding her comments that she did not agree with its contents, indicated a reason­able likelihood that she intended to have a Will produced

‘[t]he likelihood of making a will required the Court to inquire into the evidence as to the hypothetical subjective state of mind of Testator.’

However, even if the Court is satisfied that a proposed will is reasonably likely to be one that would have been made by a person with testamentary capacity, the Court must also consider the appropriateness of making an order.

The Court was satisfied with the evidence that Millie intended to make a Will; having had regard to the gifts made by the 2001 Will, the gifts proposed by the Draft Will and the gifts discussed with Carolyn- the Court concluded that the Draft Will reflected, to a very considerable extent, Millie’s wishes as to the disposition of her estate.

The respondents have sought leave to appeal the decision to the High Court

Presence; a ”Gentlewoman” and her maid

In England & Wales a Will must be witnessed by people in the ‘presence’ of the Will maker s9(c) of the Wills Act 1837(“the Act”) provides

“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

I posted about a woman who went to her attorney’s office to execute her will in the 1770’s and the influence that it has regarding remote witnessing of documents today.

In the 18th century, it was uncommon for English wills to be made by women. In 1779 Honora Jenkins “Gentlewoman” (the parish burial register records her as also being a widow) was entered into the probate register of the Prerogative Court in York.

Prerogative Courts in Canterbury and York had jurisdiction to grant probate or administration where the deceased left an estate above £5 within the diocesan boundaries of York or in more than one diocese in the northern province.

Honora’s is one of a handful of women’s names on that page of the register; two were identified as widows, one as a spinster.

Honora was born in 1720 and married John Jenkins, a customs house agent in 1747. On her father’s death in 1760, Honora inherited his estate in her own right expressed in his will as

”not in any way subject to the debts or control of her husband”

She also inherited the estate of the last Brooke baronet an uncle who died a lunatic and unmarried in 1770.

Honora was childless and had been widowed; the date she made her will isn’t known but when she died in 1778 her estate was left to a Mr Dade.

The validity of Honora’s will was tested in 1781 by the Court of Chancery in Casson v. Dade

Honora had given instructions to her solicitor to prepare a will attended his office to sign it and have it witnessed, where –

”Being asthmatical and the office very hot, she retired to her carriage to execute the will, the witnesses attending her: after seeing the execution they returned into the office to attest it”

Honora’s maid gave evidence that the carriage horses had reared up and moved the carriage back to bring the window and the witnesses attesting their signatures into Honora Jenkins’ line of sight; immediately after the attestation, the witnesses took the will to her, and one of them delivered it to her, telling her they had attested it, upon which she folded it up and put it into her pocket (which served a similar purpose as a handbag does today).

New South Wales, COVID19 & Remote Witnessing

In New South Wales Section 6 of the Succession Act provides that a Will isn’t valid unless it is in writing and signed by the Will maker (or by some other person in the presence of and at their direction ), and the signature is made or acknowledged by the Will maker in the presence of two or more witnesses present at the same time, and at least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Casson v Dade (1781) 28 ER 1010 established visibility as the test of “presence”- the Will maker who suffered from asthma rested in her coach outside her solicitors’ office after signing her Will before two witnesses. Due to a fortunate series of events, the coach had been parked in such a way that it afforded a view of the interior of the solicitor’s office; the Court held the witnesses had signed in the Will makers presence.

In New South Wales today Parliament passed the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (“the regulation”) allowing for the witnessing and attestation of documents to take place by audiovisual link.

An “audiovisual link” is defined as “technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”.

A document is defined as a will, power of attorney or enduring power of attorney, deed or agreement, an enduring guardianship appointment, an affidavit, (including an annexure or exhibit to the affidavit) and statutory declaration.

Remote witnessing of signatures may be performed by audiovisual link, so long as the witness: observes the signatory sign the document in real-time; attests this by signing the document or a copy of the document; is reasonably satisfied that the document the witness signs is the same document or a copy of the document signed by the signatory; and endorses the document, (or a copy of the document) with a statement specifying that the document was witnessed in accordance with the regulations.

The regulations further state that a witness may sign a counterpart of the document, or by countersigning a copy of the signed document the signatory scans and sends the witness electronically.

The witness must sign as soon as practicable after witnessing the signatory sign of the document. However, this does not limit the other ways in which a witness may confirm they witnessed the document.

The regulation made under s17 of the Electronic Transactions Act 2000 (NSW) will expire on 26 September 2020, unless this date is changed by further regulation or resolution of Parliament.

Remote Witnessing in the Time of COVID19

The extraordinary nature of the COVID19 global pandemic has motivated some people to either make or revise their wills to reflect their changed circumstances In order to comply with the legislative formalities in each jurisdiction, a will must be properly signed and witnessed.

In Australia, each jurisdiction is slightly different but generally, the requirements for executing a formal will are that the document is in writing and signed by the Will maker with the intention the document is to be their will in front of at least two witnesses who must be mentally competent; in order to confirm that the will-maker’s signature, made in their presence was genuine.

Although no longer necessary, most wills have an attestation clause recording the circumstances of the signing and witnessing of the will.

New South Wales

In NSW s6 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 made on 30 March 2020 provides that a person must not participate in a gathering in a public place of more than 2 persons unless it is a gathering of persons for the purposes of work; which includes work done as a volunteer or for a charitable organisation.

United Kingdom

In Scotland powers of attorney may be witnessed and certified by video. Similarly, the Scottish Law Society has issued guidance that a professional will draftsman might act as a witness on a video call provided that they are not an executor.

However in England & Wales s9(c) of the Wills Act 1837(“the Act”) provides that

“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

Remote witnessing introduces evidential difficulties concerning the question of whether or not the document signed by the testator is the same document signed by the witnesses. In order to satisfy the requirement as to the testator’s presence, they must have been in a position to see the witnesses sign.

Casson v Dade (1781) 28 ER 1010 approved a will where the witnesses signed the will inside the offices of the lawyer whilst the testatrix was in a carriage outside but in the line of sight of the witnesses.

If you were in a position for the Will maker to sign in front of a window while the two witnesses watch from outside; then pass the Will to the two witnesses to sign while the Will maker watches them sign through the window. However, this could be difficult to arrange.

The overriding purpose of the Act is to prevent fraud and ensure the veracity of the document (as the Will maker is not in a position to give evidence about the circumstances in which the Will was made) may weigh against interpreting s. 9 of the Act as permitting remote witnessing.

The BBC reports that Wills have been held in place by windscreen wipers and signed on a car bonnet in order to meet the requirements under the Act. Ministers say there are no plans to relax the strict rules. As such it wouldn’t be possible using video technology.

United States

In the United States reports that documents are being signed at meetings arranged in parking lots where witnesses are able to watch through a car windshield as people sign their document before safely exchanging them.

On March 20, New York Governor Andrew Cuomo allowed remote online notarisation of documents — one of the more than 20 US states to provide a solution to this challenge of self-isolation.

Canada

In Canada, the Ontario government has amended the Succession Law Reform Act to enable legal professionals to witness the signing of wills and powers of attorney through the use of audio-visual communication technology such as Skype or Zoom. Similar legislation has been passed in other Canadian provinces, including British Columbia and Quebec

COVID19 & Will making

Almost 60% of adult Australians have made a will which is more favourable in comparison with the reported rates in the UK and the US.

Although it has been reported that the likelihood of making a will increases with age (93% of Australians over 70 have a will) half of the population aged 40-49 have a will; 35% of Australians under thirty with financial dependents have a will but most younger people do not have a will.

Although 40% of Australians do not have a will, over half are planning to make one – with procrastination the main reason for not having a current will.

Few people make a deliberate decision not to make a will; including having few assets, not having children or dependents, being from a cultural group in which will making is not normative behaviour and/or having confidence that family members will manage assets appropriately and a will is not needed.

Similarly, as most Australians have made binding superannuation nominations, and some non-will makers held assets jointly and they weren’t non-planners with few assets.

People usual make a will following an important life event- getting married, having children or buying a house were the main triggers for making a will. Importantly knowledge of the consequences of intestacy is not a motivation for either making or not making a will.

Becoming ill or the illness, death of a partner, relative or friend, acting as an executor, changes in family circumstances and planning to undertake long-distance travel are triggers to make a Will.

Currently, we are experiencing a medical crisis where a significant and ongoing person-to-person spread of an infectious disease is occurring in multiple countries around the world at the same time. The impact of coronavirus on the wider community is unprecedented.

If you wish to make a Will, contact me and I will be able to conveniently and expertly advise you on your estate and assist in preparing a simple will enabling the distribution of your estate in line with your wishes

Do you want fries with that?McDonald’s Napkin Holographic Will

Philip Langan believing that he was having a heart attack while eating at McDonald’s in Yorkton Saskatchewan quickly wrote

Ron Langan

Dennis Langan

Sharon Langan

Landry Langan

Philip W. Langan

Marann Langan (Gust)

Dallas Langan

Split my property evenly, Dad Philip Langan”

He later gave the note to his daughter Sharon who wasn’t with him when he wrote it and asked her to take care of it.

Phillip died on December 30, 2015; in February 2016, Sharon and her brother Ronald produced the napkin they say was their father’s will.

Maryann submitted to the Court of Queen’s Bench Saskatchewan that Sharon believed Philip wrote on the napkin sometime after their brother Earl died in 2006, but before their brother, Landry died in August 2015.

Maryann submitted that Philip told her one month before he died that he didn’t plan to leave a will because

“he wanted us, kids, to fight like he had to.”

Maryann was sceptical the napkin was written by Philip because she had no other examples to verify his handwriting.

Ronald submitted that on the day his father, Philip, wrote out his intentions on the napkin he was fully aware of what he was doing including his reason for not to include my brother, Earl Langan, in the will.

“we’re not going to include Earl as he had passed away.”

Philip’s son Philip submitted he was with his father when he gave the handwritten document to Sharon telling her

“This is my will and I want you to keep this in case something happens to me.”

In Saskatchewan, handwritten (holographic) wills and  “formal” wills are both recognized as valid. Section 8 of the Wills Act provides

A holograph will, wholly in the handwriting of and signed by the testator may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness.

In 1948, Cecil Harris scratched the following note on the fender of a tractor as he lay dying, pinned underneath.

“In case I die in this mess I leave all to the wife. Cecil Geo Harris,”

It was found to be a valid will.

However as holograph wills are often so informally drafted the court must ascertain whether the author of the document had the requisite testamentary intent.

 The Court believed there was enough evidence that Philip intended to create a will when he wrote the note. As Philip thought he was having a heart attack — a time when one’s mind would reasonably turn to the question of estate planning, especially “in the absence of an existing will

Philip immediately delivered the document to his daughter, Sharon, asking and that she keep the document in case something happened to him, verified by Sharon and Philip shows a clear testamentary intention.

Although the family has asked the court to determine whether Philips handwritten document is a valid will, they have agreed that regardless of the court’s decision, Earl’s children, just like Landry’s children, will receive a portion of the estate as though Earl had been named in the document; if the document is not a valid will and the estate is distributed as an intestacy, Earl’s children will be entitled to their father’s one-eighth share of the estate since under The Intestate Succession Act,

Retracting a Renunciation of Probate

The Supreme Court of NSW generally prefers to have estates administered by somebody who is present in the jurisdiction, who is able to personally attend to their duties within the jurisdiction and, by reason of their presence in the jurisdiction, is amenable to court orders designed to enforce obligations attending a grant of probate or administration.

Ron Tee Lim died on 1 February 2018 leaving assets in New South Wales, with a gross value of about $1.783 million and a net value of about $1.773 million. Ron’s Will, dated 1 May 1986 left the whole of his estate

“to my … brother and sister in equal shares or to the survivor of them”.

Ron had named his brother Colin executor; Colin predeceased him; his sister Kaye, (an overseas resident) had renounced Probate in March 2019;

”renouncing all rights to probate of the Will to be made or given to me.”

In July 2019 Seema Virinder Singh made an uncontested application for Letters of Administration with the Will of Annexed (”letters of administration cum testamento annexo” or “c.t.a.”.) in the Probate Registry.

On 7 August 2019, an Acting Deputy Registrar in Probate raised a number of requisitions, including that

“[Ms Singh] has no beneficial interest in the estate and the Court will not make a grant to such a person …”

in the absence of special circumstances being shown to exist, the application would be rejected.

Referring to s 72 of the Probate and Administration Act 1898 (NSW) (”the Act”) the Acting Deputy Registrar suggested that the only proper way in which Kaye could withdraw

”[t]he executor/sole beneficiary will have to file an affidavit retracting [her] renunciation”.

Section 72 of the Act provides that the executor of the estate or any spouse or next of kin of the deceased applying for a grant of probate or letters of administration who lives overseas may appoint an attorney within the jurisdiction pursuant to a Power of Attorney and authorise the attorney to act on behalf of the executor or administrator who is not resident of Australia to apply for a grant of probate or letter of administration.

However, an application by way of an Attorney must be on such terms and conditions as the Court consider fit. 

The Court granted Kaye’s notice of motion seeking leave to retract the renunciation so that as executrix, or some other person within the jurisdiction, appointed under her power of attorney to act for her, and if so that administration may be granted to such attorney, on behalf of Kaye on such terms and conditions as the Court thinks fit.

Testamentary Capacity & Freedom

Milan Zlatevski died in May 2015 aged 85 leaving a will made on 15 October 2013 (“the 2013 Will”) appointed his daughter Nada Geroksa executor and sole beneficiary of his estate.

Milan’s estate consisted of a home in Rockdale (“the Rockdale property”) worth approximately $1.2 million, and cash in a Commonwealth Bank account in the amount of $23,146.55; no liabilities we’re disclosed in Nada’s executor affidavit, therefore the total gross value of the estate was $1,223,146.55.

Nada sought probate of the 2013 Will. Milan’s son, Tony (Tode) Zlatevski, challenged the Will claiming that Milan lacked testamentary capacity at the time the 2013 will was made.

Tony also claimed that the 2013 will was vitiated by a false representation made by Nada that Milan had bought a house for Tony.

The Court had to determine whether Milan had testamentary capacity at the time he made the 2013 will; and whether the 2013 will was vitiated by a false representation made by Nada and relied on by Milan.

As Milan had not made another will if the 2013 document is found not to be valid, he will have died intestate. In that event, Tony sought an order that he be granted letters of administration.

The Court was satisfied that Milan had testamentary capacity at the time he made the 2013 Will; he had knowledge of the nature and extent of the estate (its only substantial asset was the Rockdale property); and was able to comprehend, appreciate and weigh up the competing claims bearing in mind the importance of a testator’s power to freely dispose of their assets and of respecting their choices.

“a testator (who) has disinherited a child for reasons that may be unfair or shock ordinary members of the community, does not make a will invalid.”

Tony submitted that the 2013 will was vitiated by a misrepresentation made by Nada that Milan had provided Tony with a house; this representation was false and was relied on by Milan when executing the 2013 will.

The making of a false representation to a testator which has a direct effect on the making of a will, such as by inducing a testator to make their will in a particular way, maybe equivalent to positive fraud and may render the 2013 will invalid.

The Court was satisfied that Nada’s representation

”he bought the Kogarah house for Tony”

was based on Milan’s own longstanding and repeated belief, and there was no basis for the Court to infer that it was made by Nada with a design to raise a prejudice in Milan’s mind against Tony for her benefit.

The Court ordered that Tony pay Nada’s costs of the proceedings – although exceptions to the general rule that costs follow the event have been recognised in probate litigation, no submissions were made to the Court that this was a case in which the exceptions apply.