Testamentary capacity is necessary and significant when making, updating, or revoking a will. It refers to the person’s mental state when formally executing their testamentary intentions.
If someone lacked testamentary capacity and had made a will at such a time, its validity is in great question. If a prospective will-maker lacks testamentary capacity but tries to execute a will anyway, this can be quite complex for the family and any other eligible persons left behind.
However, if someone lacks testamentary capacity. the law allows for another will to be made, but on strict circumstances.
A court-ordered instrument can be created to help the person make, update, or revoke their Will.
It is known as a Statutory Will, designed to assist testators who lack testamentary capacity to form valid testamentary intentions to ensure that their estate is best dealt with and protected in accordance with their wishes. The effect of a Statutory Will means that even if they lack the capacity to make a will, they can still have one validly executed, as ordered by the Court.
In this circumstance, the Supreme Court, under s 18 of the Succession Act 2006 (“the Act”), has the power to “authorise a Will to be made, altered or revoked for a person without testamentary capacity” upon application by some other person.
Type of capacity issues that can give rise to granting a statutory will
While medical assessments can assist in assessing a person’s capacity to make a Will, whether one lacks testamentary capacity is ultimately a legal test. It considers the mental state of the person who has made, or wishes to make, their Will, at the time of this request.
As we have established, testamentary capacity refers to whether someone has the mental ability to make a Will. Therefore, any factors relating to the cognitive abilities of the will-maker (or “testator”) will be considered. Examples of individuals who may lack testamentary capacity are those who suffer from cognitive decline (such as dementia), have been diagnosed with an intellectual disability, or are a minor at law, and, unless otherwise exempted, cannot execute a valid will.
If a testator does not have this mental ability, there are three capacity categories that the court may consider. These are lost capacity, nil capacity, and pre-limited capacity.
1. Lost capacity
A testator who has lost capacity for making a will may have a genuine need to change their Will or make a new one altogether. This may arise if, for example, a sole or significant beneficiary dies and the person’s existing will does not make allowance for what might then happen. If this happens, that person who lacks or has lost capacity cannot make another valid will or update their existing Will (also known as a “codicil”). If there is no one to challenge the Will and to make a successful family provision claim; there would need to be total or impartial intestacy (if there is no valid will when you die, intestacy laws set out the way in which an estate will be distributed). If there is no one to take the Estate upon the intestacy, some or all of the estate might fall to the Crown and not to any of the desired or entitled beneficiaries.
2. Nil capacity
This matter could arise, for example, if there are no family or eligible persons who survive the deceased or have been able to form any relationship of a kind, entitling a claim under the family provision legislation. Statutory wills are available for people with nil capacity and can help them validity leave their estate to whom they wish.
3. Pre-empted capacity
Nil capacity cases involve people who have never had testamentary capacity, usually because of mental infirmity from an early age. In some of these types of cases, the incapacitated person may be in possession of valuable property, which emphasises the importance of having a legally executed instrument to protect their estate for when they pass.
Pre-empted capacity can be present in cases where a person, though still a minor and therefore lacking testamentary capacity, was old enough to form relationships and express reasonable wishes about their assets before losing testamentary capacity.
A typical example would be a person of seventeen years of age who suffers severe and permanent brain injury from a motor vehicle accident and is subsequently awarded extensive damages.
While the Act holds that minors are not eligible to make a valid will, if such a person is in a position where they could form relationships and express their testamentary wishes, the Court may order a Statutory Will.
So, when a person wants to make a will, but lacks testamentary capacity, they can apply for a Statutory will.
If a person makes, alters, or revokes a Will at a time that they lack testamentary capacity, their Will might be challenged on those grounds, and that Will, codicil, or revocation may be held invalid. If a Will is made, or being considered, or updated by the person who is held to have lacked testamentary capacity, at law, that person would be held to have died intestate (which, essentially, has the same effect as dying without a Will).
Depending on the type of claim that may arise by an eligible person against the estate, leaving an invalid will results in not having any will at all.
The potential for family provision claims can arise whether a person leaves a will, or not. While the testator can make provisions in their Will to best reflect the protection of their estate in accordance with their wishes, whether a family member or beneficiary makes a claim upon their estate is out of their control.
When would a Statutory be needed, and who can apply?
As shown in the tables below (Figures 1 and 2), each jurisdiction has provisions for who can apply for a Statutory Will in Australia.
|Standing to apply
|‘on application by a person’ s 18(1) Succession Act 2006 (NSW)
|‘on application’ s 21(1) Succession Act 1981 (QLD)
|‘on application’ s 16A(1) Wills Act 1968 (ACT)
|‘on application’ s 19(1) Wills Act 2000 (NT)
|Standing to apply
|‘on application made by any person’ s 40(1) Wills Act 1970 (WA)
|‘on application by any person’ s 22(1) Wills Act 2008 (TAS)
|‘any person may make an application for an order under this section’ s 21(2) Wills Act 1997 (VIC)
|‘on application made by any person’ s 7(1) Wills Act 1936 (SA)
In most states, leave [or permission] is required from the Court to proceed with the application. However, there are exceptions in WA and Victoria, in which the evidence is provided with the application.
Nevertheless, the Court must still be satisfied that an applicant is an appropriate person in most states. That is done when leave is considered by the Court for the application to proceed.
The court must also be satisfied that the person applying for the Statutory Will is qualified
Keeping in mind that there are subtle differences between the various jurisdictions, these are the issues the Court must consider in the application procedure for a statutory will:
- An applicant is an appropriate person;
- The person whose will is under consideration is incapable of making a will or lacks testamentary capacity;
- Adequate steps have been taken to allow persons with a proper interest to be represented; and
- The proposed will is one which the person would have made if the individual had testamentary capacity (or if, in Victoria, reflects their likely intentions or what those intentions might reasonably be expected to be).
There is a ‘core test’ when the Court considers the proposed Will
The core test involves an assessment by the Court, as to whether the proposed will, codicil, or will revocation best reflect the anticipated intentions and wishes of the will-maker. This test is assessed based on what or whom the person who lacks capacity would have been likely to include in their will if they possessed the capacity to execute one themselves.
The core test is not uniform across Australia.
In Queensland (QLD), Western Australia (WA), and the Northern Territory (NT), the legislation appears to have a lower threshold requiring that the proposed Will is one that the person might have made.
This test is differently stated in NSW, Tasmania, and the ACT, which has the requirement that the Will would have been “reasonably likely to be one that would have been made.”
In Re Will of Jane  NSWSC 624, the NSW Court’s concern under s 22(b) of the Act was with the actual or reasonably likely, subjective intention of the person lacking capacity. With this in mind, the Court discussed the following:
- It is the specific individual [incapable of making a will], [who] must be considered;
- It is not an objective or hypothetical person;
- The jurisdiction of the Court is to make a statutory will [which] … would have been made by that person [at the time of the hearing of the application]; and
if the person had testamentary capacity.
Further, the case of R v J  WASC 53 (“R v J”)is a primary example of how a statutory will can be granted by the Court to benefit the will-maker.
R v J involved an application made to the Court, to grant a statutory will to remove the will-maker’s father from conferring any benefit from his estate. The testator was estranged from his father. The Court granted the statutory will, and the father was removed as a beneficiary.
This example shows how an application for a statutory will can be granted if the testator has lost the capacity to amend the will themself to best reflect their wishes despite their lack or absence of testamentary capacity.
Elderlaw Legal Services notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Elderlaw Legal Services are here to help. Please get in touch with us on 02 9979 1009 today to make an enquiry.
 Rodney Lewis, Elderlaw Legal Services (2019), ‘The Use of Statutory Wills to Protect Elderly Testators’ Capacity, Care and Control: The Second Annual Elder Law Symposium, Marriott Hotel Melbourne, Australia.
 Op Cit.
 Ibid 7.
 Above n 1.
 Above n 1.
 Above n 1.
 Above n 1.
 Above n 2.
 Above n 1.
 Re Will of Jane  NSWSC 624; Above n 1.