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.

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Ann Spencer
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