1.1 The New South Wales Law Reform Commission has received a reference from the Attorney General to investigate the problems faced by persons wishing to make a will when they are suffering from a developmental or mental disability. As the law stands, the requirement of testamentary capacity means that many persons lacking will-making capacity are unable to make a will, or if they do, the validity of their dispositions will be in doubt. This may result in an expensive trial at the time probate is sought in order to ascertain capacity.

1.2 The intention of this reference is for the Commission to report on the desirability of creating a scheme whereby testamentary dispositions made by persons lacking capacity could be given effect to, or such dispositions could be made on their behalf.

1.3 Such a scheme would provide a useful solution to a number of problems created by the requirement of testamentary capacity. It would, for example, enable provision to be made on a testator's behalf:

(a) for a housekeeper or some other employee of the testator to whom the testator is under an obligation which should be recognised by a legacy or other provision on the testator's death;

(b) to ensure that money derived by an incapacitated testator from one side of the family goes to relatives on that side and not to those on the other side of the family;

(c) for a stepchild of the testator who would not benefit under a will made before the testator lost capacity, or under intestacy or family provision legislation;

(d) to avoid a probate action which the testator's existing testamentary dispositions are thought likely to provoke if left as they are.¹

1.4 Preliminary research and consultation by the Commission has revealed that this issue has been addressed in a number of jurisdictions including the United Kingdom² and Victoria³. On the basis of this research, we have come to the tentative conclusion that a scheme similar to that operating in the United Kingdom should be introduced in New South Wales.

1.5 The object of this document is to outline the major characteristics of the scheme under consideration, in order to generate comments and suggestions from interested individuals and groups. It does not represent the Commission's final recommendations, nor is it intended as a detailed account of the proposed scheme. The following pages outline only the basic structure. We anticipate that matters of administration will be filled out in detail in the final report.

1. Examples (a), (b) and (d) are drawn from the Chief Justice's Law Reform Committee (Vic) Report on Wills for Mentally Disordered Persons (1985) at 5, describing the cases most commonly brought before the United Kingdom Court of Protection. Example (c) is drawn from correspondence between Mrs Rosemary Foot MP, then Deputy Leader of the Opposition and the then Attorney General the Hon. Terry Sheahan, which lead to the Attorney referring this matter to the Commission.

2. Part VII, Mental Health Act 1983 (UK).