WILLS, PROBATE AND ADMINISTRATION (STATUTORY WILLS) AMENDMENT BILL 1992

A BILL FOR

An Act to amend the Wills, Probate and Administration Act 1898 to enable wills to be made for persons lacking will- making capacity.


The Legislature of New South Wales enacts:

1. This Act may be cited as the Wills, Probate and Administration (Statutory Wills) Amendment Act 1992.

Commencement

2. This Act commences on a day to be appointed by proclamation.

Amendment of Wills, Probate and Administration Act 1898 No 13

3. The Wills, Probate and Administration Act 1898 is amended as set out in Schedule 1.

(Sec. 3)

(a) Insert in section 3 after the definition of “Seal of the Court”: “Statutory will” means a will made in accordance with Part 1B.

(b) Omit the definition of “Will”, insert instead:

(a) a testament, a codicil and any appointment by will or by writing in the nature of a will in exercise of a power; and

(b) a statutory will, unless a provision of this Act provides to the contrary; and

(c) any other testamentary disposition.

(2) Section 6 (Will of minor):

At the end of section 6, insert:

(2) A statutory will made for a minor is valid.

(3) Section 7 (Form and manner of execution of wills):

After section 7 (4), insert:

(5) This section does not apply to a statutory will.

(4) Section 9 (Appointments by will to be executed like other wills etc.):

At the end of section 9, insert:

(2) This section does not apply to an appointment made by a statutory wiin exercise of any power.

(5) Section 17 (Manner of revocation):

(a) After “this section” in section 17 (1), insert “or as provided in Part 1B”.

(b) In section 17 (2), after “another will”, insert “or statutory will”.

(6) Section 18 (Effect of alteration in a will):

After section 18 (2), insert:

(3) This section does not apply to a statutory will.

(7) Section 18A (Certain documents to constitute wills etc.):

After section 18A (2), insert:

(3) This section does not apply to a statutory will.

(8) Section 19 (Revival):

After “section 7” in section 19 (1) (b), insert “or Part 1B”.

(9) Section 20 (When a devise not to be rendered inoperative etc.):

Omit “as aforesaid”, insert instead “in accordance with section 17 or Part 1B”.

(10) Section 29A (Power of the Court to rectify wills):

After section 29A (5), insert:

(5A) This section does not apply to a statutory will.

(11) Section 32 (Deposit of will in registry of the Court in testator’s lifetime):

(a) After section 32(1), insert:

(1A) The Registrar or Deputy Registrar is to deposit in the registry of the Court each statutory will he or she executes.

(1B) The statutory will:


(a) is to remain in the registry until the death of the testator for whom it was made; or

(b) is to be given to the testator if the testator so requests and the Court is satisfied that the testator has acquired or regained will- making capacity since the will was made.


(1C) On the death of the testator, the Registrar must deliver the statutory will to either of the executors named in the will, or in case of doubt to such person as the Court may direct.

(b) From section 32 (2), omit “so deposited”, insert instead “deposited under subsection (1) or (1A)”.

(c) After “deposited wills” in section 32 (2), insert “or deposited statutory wills”.

(12) Part 1B:

After Part 1A, insert:

PART 1B - STATUTORY WILLS

Object of this Part

32FA. The object of this Part is to establish a scheme to enable valid wills to be made for persons lacking will-making capacity and for the admission of those wills to probate.

Definitions

32FB. (1) In this Part:

“Court” means the Supreme Court;

“order” means order under section 32FD.

(2) In this Part, a reference to the making of a statutory will includes a reference to the following:


(a) the alteration of a statutory will;

(b) the revocation of a statutory will;

(c) the making of a codicil to a statutory will.


Statutory wills valid

32FC. (1) A will made for a person who, at the time the will is made, lacks will-making capacity is valid if made in accordance with this Part.

(2) A person lacks will-making capacity if for any reason the person does not have the capacity to make a valid will.

(3) Without limiting subsection (2), a person may lack will-making capacity if the person is mentally ill or mentally disordered or is unable to communicate because of physical or other disability.

(4) For the purposes of this Part, a person does not lack will-making capacity merely because the person is a minor.

Orders for making of statutory wills

32FD. The Court may order the Registrar or Deputy Registrar to execute a will made in terms directed by the Court for a person who lacks will-making capacity.

Application for making of order

32FE. (1) Any person may apply to the Court for an order to be made.

(2) The application must be made in accordance with the rules of the Court.

Leave to make application required

32FF. (1) The leave of the Court must be obtained before the application for an order is made.

(2) The Court must refuse to give leave:

(a) if it is not satisfied that there are reasonable grounds to believe that the person for whom the statutory will is to be made under the order may be incapable of making a valid will; or

(b) whether or not the Court is satisfied that there are such grounds, if it is not satisfied that there are reasonable grounds to believe that it may be appropriate for a statutory will to be made for the person.

(3) The Court is not bound by the rules of evidence and may inform itself as it thinks fit in relation to any of the matters referred to in subsection (2).

(4) Evidence relating to the matters referred to in subsection (2) may be given to the Court in such form and in accordance with such procedures as the Court thinks fit,except as provided by rules of the Court.

Attendance at hearing of application

32FG. (1) At the hearing of an application for an order:

(a) the person for whom it is sought to make a statutory will may, and if the Court so directs must, attend and is entitled to be heard; and

(b) the person may be represented by a barrister or solicitor or, with the leave of the Court, by another person; and

(c) the Protective Commissioner is entitled to attend and to be heard.

Basic principle for making of statutory will

32FH. In considering an application for an order, the Court is to apply the principle that a statutory will should, as nearly as practicable, be made in the terms in which a will would have been made by the person lacking will-making capacity if the person had the capacity to make a will at the time of the hearing of the application.

Requirements to be satisfied before order made

32FI. The Court may make an order if, after conducting a hearing of the application for the order, the Court is satisfied:

(a) that the person for whom the will is to be made is incapable of making a valid will; and

(b) that, in the circumstances, a will should be made for the person.

Particular matters to be considered by the Court

32FJ. In considering an application for an order the Court must take into account the following matters:

(a) any evidence relating to the wishes of the person for whom the will is to be made;

(b) the likelihood of the person acquiring or regaining capacity to make a will at any future time;

(c) the terms of any valid will previously made by the person and the interests of the beneficiaries under that will;

(d) the interests of any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;

(e) the likelihood of an application being made under the Family Provision Act 1982 for or on behalf of an eligible person (within the meaning of that Act) in respect of the property of the person for whom the will is to be made and the provision that the Court might order to be made for the eligible person under that Act;

(f) the circumstances of any person for whom the person might reasonably be expected to make provision under a will;

(g) any gift for a charitable or other purpose the person might reasonably be expected to give or make by a will;

(h) the likely assets of the estate;

(i) any other matter that the Court considers to be relevant.

Appointments by statutory will

32FK. (1) A valid appointment in exercise of a power may be made by a statutory will.

(2) If a statutory will makes an appointment in exercise of any power, the appointment is a valid execution of a power of appointment by will even if it has been expressly required that a will made in exercise of the power should be executed with some additional or other form of execution or solemnity.

Effect and construction of statutory will

32FL. (1) A statutory will has the same effect for the purposes of grant of probate or administration, and for all other purposes, as a will executed in accordance with section 7 by a person with capacity to make the will.

(2) A reference in this Act to a testator is taken, in relation to a statutory will, to be a reference to the person for whom the will was made

(3) The construction of a statutory will is not altered merely because the testator acquires or regains capacity after the execution of the will.

Revocation of statutory will by testator with capacity

32FM. A person who acquires or regains capacity to make a will after a statutory will has been made for the person may revoke the statutory will in the same way as a will executed under section 7 may be revoked.

Application of Family Provision Act 1982 and other documents

32FN. A reference in any Act (including the Family Provision Act 1982), statutory instrument or other document to a will includes a reference to a statutory will.

Costs

32FO. The Court may make orders in respect of costs of or incidental to proceedings under this Part in accordance with section 76 of the Supreme Court Act 1970.

Application of common law and equity

32FP. The principles and rules of the common law and of equity are, to the extent that they are not inconsistent with this Part, to apply to a valid statutory will in the same way as they apply to a will executed in accordance with section 7.


(13) Section 42 (Application for probate or administration):

After “deposited wills” in section 42 (3), insert “(and deposited statutory wills)”.