Statutory Will

Statutory Will

The Law and Authority  

The Court has jurisdiction to make a will on behalf of the Applicant who lacks testamentary capacity under s 40 of the Act. The matters to be considered by the Court is found in s 41 of the Act, which the Applicant must provide to the Court on an application under s 40 of the Act.

In R v J [2017] WASC 53 at [18], Chaney J outline the relevant considerations, which include:

‘… the reasons for the application, the extent of the estate, proposed terms of the will, any information available as to the applicant’s wishes and the contents of any previous wills, the effect of the proposed will on beneficiaries under a previous will or under an intestacy, the likelihood claims being made under the Family Provision Act 1972 (WA), the circumstances of persons for whom the incapable person might reasonably be expected to make provision, any likelihood that the person concerned might reasonably be expected to make provision for a gift to a charitable or other body, and other relevant matters.’

Additionally, Chaney J stated at [69] that:

‘It is for the court to exercise its discretion, having regard to the information provided in accordance with s 41 of the Wills Act, as to whether a will in the terms proposed should be made’.

Furthermore, s 42 of the Act requires the Court to refuse an application if it is not satisfied that the suggested will ‘is one which could be made by the person concerned if the person were not lacking testamentary capacity’.[1]

[1] R v J [2017] WASC 53, [19].

2020-09-14T08:36:44+00:00 August 10th, 2020|Uncategorized|0 Comments