Australia: WA court declines to make statutory will

Last Updated: 3 April 2017
Article by Ann Spencer

Earlier this month His Honour Justice Chaney handed down his decision ( R v J [2017] WASC 53) in respect of an application seeking to have the Supreme Court make a will for a woman lacking testamentary capacity pursuant to section 40 of the Wills Act 1970 (WA) (Wills Act), also known as a statutory will.

Despite all relevant parties being in favour of the proposed will, the Court declined the application. The laws relating to statutory wills in Western Australia are different from those in other states and this case gives important guidance about how Western Australian courts determine whether a statutory will should be made.

Family History

To protect the identities of the parties, they are referred to as R and J. The plaintiff R, is the adult daughter of J.

J is currently 91 years old and is married to H, who she married in September 1966. She was previously married but her first husband died in 1953. J had two children with her first husband, being G and K and they were in their late teens when J married H. J and H have one child, R, who was born in 1967.

Justice Chaney accepted, after considering reports from J's general practitioner and physician (who diagnosed a diminution of high mental function due to dementia) that J lacks capacity to make a will and that she is a person in which a statutory will could be made.

The Proposed Will

The draft will which accompanied R's application contained, amongst other things, that:

  1. G and K would receive the proceeds from the sale of the marital home of J and their late father, which J held in two bank accounts;
  2. money in four other bank accounts would be transferred to R, along with all her remaining personal property; and
  3. the residue of J's estate would be given to H, provided he survives J for 30 days, failing which the entire residue passes to R. That residue would include J and H's family home worth approximately $350,000.

It appeared to Justice Chaney that all parties are on good terms with each other and G, K and H consented to the making of the proposed will. G consented despite independent legal advice to the contrary.

Was the Court prepared to make the proposed Will?

There are a number of matters set out in section 41 of the Wills Act which must be provided to the Court by an applicant when they ask for a statutory will to be made. Such matters include:

  • an estimate of the nature and value of the assets and liabilities of the person concerned;
  • any evidence available as to the wishes of the person concerned; and
  • evidence that the applicant has made reasonable enquiries concerning the likelihood of an application being made under the Family Provision Act 1972 (WA).

Justice Chaney commented that these materials furnished before the Court are relevant considerations in the sense that they are matters which the Court is required to have regard to in exercising its discretion to make a will for a person lacking capacity. He considered the numerous materials submitted by R and he ultimately concluded that the Court should decline R's application to make the proposed will.

There were a number of reasons for that conclusion, including the following:

  • The inconsistencies in the evidence as to the size of J's estate, as it makes it difficult to identify the likely practical effect of the proposed will.
  • In the event that H were to predecease J, the benefit to R under the will would be disproportionate to the benefit of G and K. His Honour was not satisfied that the evidence provided supported a finding that disproportionate distribution would be in accordance with J's wishes, notwithstanding that the parties all consented to it.
  • There was a significant risk that the proposed will would result in G and K receiving less and possibly very significantly less, than they would be entitled to on intestacy.
  • There was no reliable basis to conclude that J's wishes were that G's and K's entitlement to her estate should be capped at a share of the proceeds of the sale of her former matrimonial home.


As set out by Justice Chaney at [69], the object of section 40 is not to confer will making power of an incapable person on the likely beneficiaries of a person's deceased estate. It is for the Court to exercise its discretion as to whether a will should be made in the terms proposed, having regard to the information provided to it under section 41 of the Wills Act.

Previous Legal Updates

To view our previous legal update on statutory wills, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ann Spencer
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.