Earlier this month His Honour Justice Chaney handed down his
decision (R v J  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
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
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
The Proposed Will
The draft will which accompanied R's application contained,
amongst other things, that:
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
money in four other bank accounts would be transferred to R,
along with all her remaining personal property; and
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
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
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
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 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
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
As set out by Justice Chaney at , 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
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.
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To guarantee some of his inheritance, he asked the court to make a "notional estate" order to reflect the joint assets.
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