2.1 This chapter sets out the Commission’s recommendations. A draft Bill, the Wills, Probate and Administration (Statutory Wills) Bill to implement the Commission’s recommendations is annexed to this Report. The references to clauses appearing at the end of most of the recommendations are references to the draft Bill. Those recommendations which are procedural in nature should be implemented by amending the rules of the Court rather than as substantive provisions in the draft Bill.

The Commission recommends the introduction of a statutory will-making scheme which will enable wills to be made on behalf of persons lacking testamentary capacity.

2.2 Where a person lacking testamentary capacity dies his or her property may be distributed in accordance with an outdated will or the rules of intestacy. The distribution of property may be modified by an order under the Family Provision Act 1982. A statutory will-making scheme is a means of providing a person lacking testamentary capacity with a will reflecting, as far as possible, current intentions or at least what his or her intentions would have been but for the disability.

2.3 A statutory will-making scheme should not include a power to review the reasonableness at an earlier time of dispositions made by a person then having testamentary capacity on the grounds that the person now lacks such capacity. Rather the power should be exercised only in situations where a will or a new will is necessary to avoid a person’s property being distributed in a manner contrary to his or her intentions or what those intentions would have been if he or she had testamentary capacity at the present time.

2.4 A statutory will-making scheme would greatly enhance the rights and dignity of persons with disabilities by enabling their property to be devised appropriately by having regard to their current situation.

The statutory will-making power to be vested in the Supreme Court

The Commission recommends that the power to make statutory wills be vested in the Supreme Court. (clause 32FB(1))

2.6 The Commission is not persuaded by these arguments for three reasons:

• Testamentary capacity is a legal concept familiar to the courts and customarily applied by the courts.
• The informality and privacy which are claimed as virtues of the Guardianship Board can also be provided by the Protective Division of the Supreme Court as may be appropriate.
• The Protective Division already has an analogous power to examine whether a person is capable of managing his or her affairs and to order that the estate of the person be subject to management.

Persons covered by the scheme

The Commission recommends that the scheme cover any person lacking testamentary capacity. (clause 32FC)

2.8 The scheme should apply to any person lacking testamentary capacity who, as a result, is prevented from executing a valid will. There does not appear to be any justification for limiting the scheme to persons falling within the ambit of the Mental Health Act 1983 (UK) or the Protected Estates Act 1983.

Who may apply for a statutory will.

The Commission recommends that any person should be entitled to apply to the Court to make a statutory will. The application should be made in accordance with rules of the Court. (clause 32FE)

2.9 The English legislation, as noted above, limits the right to make an application to specific categories of persons. The Commission takes the view that other persons may have good reason to bring an application. Solicitors, social workers and health care workers who may be closely involved with the person should be entitled to make applications. The Protective Commissioner who may already be managing the person’s financial affairs should also be entitled to make an application.

Joining the person lacking testamentary capacity as a defendant

The Commission recommends that a person lacking testamentary capacity, who is the subject of an application for the making of a statutory will, be joined as the defendant in the application. (To be prescribed by the rules of Court)

2.10 Making a statutory will on behalf of a person lacking testamentary capacity is a significant intrusion on the person’s freedom and autonomy. The Commission therefore considers that such a process should not occur without giving the person lacking testamentary capacity the opportunity to challenge the application.

2.11 Even where a person lacking testamentary capacity is not in a position to challenge the application, the service of a summons on the person as defendant serves to inform the person about the process taking place. This approach is consistent with the current emphasis on informing persons with disabilities of any decisions which may affect them and should not be dispensed with unless the Court is satisfied that some detriment may result to the person lacking testamentary capacity.

Joinder of the Protective Commissioner

The Commission recommends that the Protective Commissioner be given the power to apply to be joined in any proceedings for the making of a statutory will. (To be prescribed by the rules of the Court)

2.12 Given that the Protective Commissioner may already be managing the affairs of a person lacking testamentary capacity, he or she may be able to assist the Court in dealing with an application for the making of a statutory will. He or she may be able to furnish the Court with, for example, details of a person’s financial affairs or of persons with an interest in the application. The Commission considers that it is appropriate to give the Protective Commissioner the power to apply to be joined in these circumstances.

2.13 The Commission recommends that even if the Protective Commissioner chooses not to apply to be joined to the proceedings, he or she should nevertheless be entitled to attend and be heard at the hearing. (clause 32FG)

Leave to make application

The Commission recommends that the leave of the Court must be obtained before an application for an order for the making of a statutory will may proceed. (clause 32FF)

2.14 The requirement that the leave of the Court must first be obtained is intended to screen applications and allow only adequately founded applications to proceed. By making it possible for any person to apply for the making of a statutory will, there is a concern that frivolous or vexatious applications may be lodged, or relatives may make applications for the purpose of ascertaining what provision, if any, the person who is the subject of an application has made for them in a will.

2.15 In order to obtain leave an applicant should have to satisfy the Court that there are reasonable grounds to believe that the person for whom the statutory will is sought to be made may be incapable of making a will. (At the actual hearing of the application for the order, the applicant must prove that the person is incapable of making a valid will). In addition the applicant should have to satisfy the Court that there are reasonable grounds to believe it may be appropriate that a statutory will should be made.

Who should be notified

The Commission recommends that an applicant should be required by the Court to notify those persons specified by the Court as having a sufficient interest in the proceedings. (To be prescribed by the rules of the Court)

2.16 The making of a statutory will may have serious consequences for beneficiaries under an existing will or persons who would take on intestacy or are entitled to make an application under the Family Provision Act. Notifying all relevant persons of an application for the making of a statutory will is therefore important. It is envisaged that the Court will specify those persons to be notified when granting leave for the application for an order.

2.17 In this respect the Commission’s approach is substantially the same as the approach taken in the English legislation where an applicant is required to give a notice of hearing to “such other persons who appear to the court to be interested as the court may specify”.²

2.18 The Commission, in recommending that the Court be given a discretion to dispense with the notification requirements, has sought to accommodate situations where the objectives of the legislation would be defeated by delay. A case illustrative of the kind of situation envisaged by the Commission is that of In re Davey (dec’d)³ in which the testatrix was 92 years of age and in very bad health. The Court dispensed with the notification procedure and ordered a statutory will. Within one week of this emergency procedure the testatrix died. Notification however should be dispensed with only in exceptional circumstances.

Lack of testamentary capacity

The Commission recommends that an applicant under the scheme be required to prove that the person for whom a statutory will is to be made lacks testamentary capacity before a statutory will may be made on his or her behalf. (clause 32FI)

2.19 The Commission is of the opinion that the Court should not be empowered to order a statutory will on a person’s behalf unless it is proven that the person for whom the will is to be made is incapable of making a valid will. This contrasts with the position under the Mental Health Act 1983 (UK) which requires only that a judge has “reason to believe” that a patient is incapable of making a valid will before a statutory will may be ordered.⁴

Factors to be considered by the Court

The Commission recommends that the Court should seek to make the will which 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. (clause 32FH)




The Commission recommends that in so doing the Court should consider the following factors (clause 32FJ):





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.

... the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight.

The Commission agrees with this approach.

2.21 The Factors. The Commission has specified what it considers to be the most important factors to be considered by the Court in making a statutory will. This differs from the approach adopted in the United Kingdom, where the legislature has left it entirely to the Court to formulate the principles which should guide it in making a statutory will.

• Factor (a) is intended to reinforce the importance which should be attached to giving effect to the person’s wishes in so far as they are ascertainable. A person lacking testamentary capacity may nonetheless have clearly indicated his or her own wishes but, where this is not the case, friends, relatives and other persons should be permitted to give evidence of the person’s wishes as expressed by word or conduct.
• Factors (b) is intended to enable tthe court to refrain from making a statutory will where the person is likely to gain testamentary capacity and therefore become capable of executing a valid will for himself or herself.
• Factors (c) and (d) are intended to encourage the Court to consider the impact of making a statutory will on any person who would receive part of the person’s estate if he or she was to die without a statutory will having been made.
• Factor (e) is intended to avoid duplication of proceedings caused by eligible persons applying under the Family Provision Act for provision out of the estate after a statutory will has been made.
• Factor (f) has regard to the interests of any person who should be provided for out of the person’s estate but is not included in factors (c) to (e) inclusive.
• Factor (g) requires the Court to have regard to the interests of any charity, benevolent society or other organisation which, by reason of the person’s affiliation or connection might expect to be pro-vided for out of the person’s estate.
• Factor (h) is intended to allow the Court to assess the various claims to the person’s estate and make provision in light of the likely nature and size of the estate.
• Factor (i) allows the Court to consider any other factor consistent with the scheme of the Act, for example, any statement of preference concerning particular individuals made by a person lacking testamentary capacity. This would be consistent with allowing the person’s views, as far as they are formed free of disability, to be taken into account. A further factor would be evidence that a person had deliberately refrained from making a will, which may suggest that the person intended that only his or her family would inherit any property on his or her death.

The execution of a statutory will

The Commission recommends that a statutory will ordered by the Court, or an alteration to an existing statutory will, be executed by the Registrar or Deputy Registrar in a manner prescribed by the rules of the Court.

2.22 In England, execution of a will made for a person incapable of managing and administering his or her property by reason of a mental disorder is in accordance with clause 97(1) of the Mental Health Act which provides:

(1) Where under clause 96(1) above the judge makes or gives an order, direction or authority requiring or authorising a person (in this clause referred to as the “the authorised person”) to execute a will for a patient, any will executed in pursuance of that order, direction or authority shall be expressed to be signed by the patient acting by the authorised person, and shall be:
(a) signed by the authorised person with the name of the patient, and with his own name, in the presence of two or more witnesses present at the same time, and

(b) attested and subscribed by those witnesses in the presence of the authorised person, and

(c) sealed with the official seal of the Court of Protection.

The effect of a statutory will

The Commission recommends that a statutory will should have the same effect as a will executed under the Wills Probate and Administration Act 1898. (clause 32FL)

2.23 The Commission considers it appropriate to place statutory wills on the same footing as ordinary wills in all respects. It should, for example, be possible for a statutory will to be revoked by a person who later acquires testamentary capacity. This is consistent with the approach taken in the English legislation.⁶

Alteration of a statutory will

The Commission recommends that a Court may alter a statutory will on the application by any person. (clause 32FB(2)(a))




The Commission further recommends that the procedures for making a statutory will also apply to an application for alteration of a statutory will.

2.24 A statutory will should have the same standing as a will made in the ordinary way. Therefore, it should be possible to alter a statutory will in the event of a change of circumstances which make it appropriate to vary the distribution of assets after death. Any person should be entitled to apply to the Court for alteration of a statutory will in the same way as any person may apply for the making of a statutory will.

2.25 The requirement that leave must be obtained before proceeding with an application for alteration will preclude the kinds of applications considered earlier.⁷ Executing the altered will in the same way as the original statutory will should also lead to an approach consistent with that taken in the Wills, Probate and Administration Act 1898.⁸

Revocation of a statutory will

The Commission recommends that a statutory will may be revoked by the same procedure as is followed when it is made (clause 32FB(2)(b)), unless the testator acquires or regains testamentary capacity in which case the statutory will should be capable of being revoked in the same way as an ordinary will (clause 32FM). A statutory will or a specific bequest contained therein should also be automatically revoked in accordance with the general provisions of the Wills, Probate and Administration Act 1898.

2.26 Any person should be entitled to apply to the Court for revocation of a statutory will by following the same procedures applicable to the application for the making and alteration of a statutory will.

2.27 Where a person for whom a statutory will is made acquires or regains testamentary capacity that person will be in a position to execute a valid will. The person should therefore be entitled to request the return of the statutory will from the registry and to revoke the statutory will in the same manner as a will executed pursuant to section 7 of the Wills, Probate and Administration Act 1898 if he or she so desires.

2.28 Sections 15 and 15A of the Wills, Probate and Administration Act 1898 will apply to statutory wills so that , subject to a precise application of those provisions, a statutory will would be revoked by the marriage of the person for whom the statutory will is made, and any beneficial gift in favour of a former spouse would be revoked if the marriage is terminated.

The Family Provision Act 1982

The Commission recommends that the Family Provision Act 1982 apply to statutory wills in the same way as ordinary wills. (clause 32FN)

2.29 While it is to be assumed that an eligible person’s interests will be properly weighed when a statutory will is made, it is conceivable that such a person may feel that he or she has been inadequately provided for under the statutory will or circumstances may change after the will is made, through for example a child being born to the person who is the subject of a statutory will. In these circumstances an eligible person should be entitled to make an application under the Family Provision Act and should not be prevented from doing so because a statutory will exists.

2.30 The Commission appreciates that this may involve the Equity Court reviewing a statutory will. On a practical level however, section 9(3) of the Family Provision Act, which sets out the factors the Court may take into consideration when deciding what provision ought to be made in favour of an eligible person, is sufficiently wide to allow the Equity Court to consider the original reasons for making the statutory will.

Application to minors

The Commission recommends that the statutory will-making scheme should include minors. (clause 6)

2.31 Section 6A of the Wills, Probate and Administration Act 1898⁹ gives the Supreme Court power to grant leave to a minor to make a will. Consistent with this approach the Commission has chosen not to follow the English legislation which expressly provides that the power of the judge to make an order for the execution of a will shall not be exercisable when the patient is a minor¹⁰, and recommends that a statutory will may be made for a minor who lacks testamentary capacity.

Proceedings for a statutory will to be public

The Commission recommends that proceedings for the making of a statutory will (including any order made by the Court) should be open to the public and that a statutory will should be a public document subject to the Court’s discretion to order otherwise. (To be prescribed by the rules of Court)

2.32 The Commission considers there is no justification for departing from the general rule requiring courts to conduct hearings in public. The Commission however acknowledges the practice of the Protective Division under the Protected Estates Act 1983 of conducting proceedings in camera. This practice is in accordance with section 80(f) of the Supreme Court Act 1970, which provides that proceedings in the Equity, Probate or Protective Division may be conducted in the absence of the public, where the Court thinks fit.

2.33 In the Commission’s view, the Court’s discretion to close the Court is a sufficient measure to ensure that proceedings are not conducted in the presence of the public where it would be inappropriate to do so. Furthermore, a statutory will, being in effect a court order, should be a public document subject to the Court’s discretion to order otherwise.

Costs

The Commission recommends that the costs of or incidental to proceedings for the making of a statutory will should be determined in accordance with the Court’s discretion. (clause 32FO)

2.34 The Supreme Court has a discretion as to how costs are awarded.¹¹ The Commission does not believe that the exercise of this discretion should be qualified.

Conflict of laws

2.35 Where a statutory will is made in New South Wales and a person lacking testamentary capacity later resides in another state or a person’s real and personal property is distributed in several states, an issue may arise as to whether the statutory will should be enforced in other states when the person dies. Rules governing the laws which should apply are necessary.

2.36 The choice of law rules in Australia are currently the subject of inquiry by the Australian Law Reform Commission.¹² Until a report on this project is published the Commission does not consider it appropriate to develop any special conflict of law rules in relation to statutory wills.

Deposit in Supreme Court Registry

The Commission recommends that statutory wills should be deposited in the Supreme Court Registry. (clause 32)

2.37 The Commission considers it appropriate to require that all statutory wills executed by the Registrar or Deputy Registrar be deposited in the Court registry. Section 32 of the Wills, Probate and Administration Act 1898 already makes provision for the deposit of wills in the registry of the Court. Unless the Court otherwise orders, statutory wills would remain in the registry until the death of the person for whom the will was made, or unless requested to be delivered to a testator who has satisfied the Court that he or she has acquired or regained testamentary capacity.

Procedures for statutory wills

The Commission recommends that Part 76 of the Supreme Court Rules 1970, which deal with procedures under the Protected Estates Act 1983, should be amended to incorporate the procedures required for the operation of a statutory will-making scheme.

2.38 Part 76 of the Supreme Court Rules requires applications under the Protected Estates Act to be made by summons returnable at the first instance before the Protective Commissioner. The Commission envisages that applications for the making of a statutory will would be made in the same way. Part 76 also sets out at length the requirements for affidavits and this could be suitably modified to accommodate statutory wills.

FOOTNOTES

1. eg Jim Simpson Submission 15 November 1989.

2. Court of Protection Rules 1984, r18(4).

3. [1980] 3 All ER 342.

4. s96(4)(b).

5. [1982] 1 Ch 237, 244.

6. See eg. Mental Health Act 1983 (UK) s97(3).

7. para 2.14

8. Section 18 of the Wills Probate and Administration Act 1898 requires an alteration to a will to be executed as a will. The section also deems an alteration to be duly executed if “the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will”.

9. Introduced by the Wills, Probate and Administration (Amendment) Act 1989.

10. Mental Health Act 1983 (UK) s96(4)(a).

11. Supreme Court Act 1970, s76.

12. Australian Law Reform Commission, Discussion Paper 44 Choice of Laws, 1990.