Tuesday, October 10, 2023

Easy** - Court criteria for statutory wills

View Legal blog - Easy** - Court criteria for statutory wills by Matthew Burgess

Last week’s post provided a summary of the key evidentiary issues in relation to any application for a court ordered will.

Even if each of the issues flagged last week can be adequately addressed, the court still retains complete discretion as to whether it will approve an application.

The key issues that a court must be satisfied about before allowing a statutory will to be created are as follows:
  1. anyone who may have a potential interest in the estate must have the opportunity to address the court;
  2. the person applying for the court ordered will must be deemed by the court to be the most appropriate person; and
  3. the court must be satisfied that it is appropriate in all the circumstances to approve the will. This invariably means that the court must be satisfied that the proposed will is reflective of what the will maker would have made if they had the required capacity.
In the context of the above, the decision in the (arguably aptly named) case of Wills v NSW Trustee [2022] NSWSC 1098 is relevant.

The main asset in this case was a property at North Bondi, valued at more than $7M. The sole owner had lost capacity and had no relatives and no will; meaning on death her estate would pass to the State Government under the intestacy rules.

A neighbour at North Bondi (named Wills) brought an application for a statutory or court ordered will for the entire estate to pass to Wills, which was rejected with the court confirming:
  1. There was evidence to support the sole owner had a preparedness to die intestate even if that meant that 'the Government' took the benefit of her estate.
  2. Furthermore, there was insufficient evidence to support a conclusion that the proposed statutory will was one that was reasonably likely to have been made, if the sole owner were to have had capacity (see GAU v GAV [2016] 1 Qd R 1 and Re K’s Statutory Will (2017) 96 NSWLR 69).
  3. An informal will (a concept explored in other View posts) produced by Wills (that gave the entire estate to her) did not assist the court in the application for a statutory will, particularly given that it was prepared and signed in circumstances sufficiently 'suspicious' to require proof that the sole owner 'knew and approved' the contents of it. A point reinforced by the fact that Wills was the sole owner's guardian and provided care and assistance and therefore owed fiduciary duties.
  4. Ultimately, Wills' application for a court ordered will was not in any material way for the benefit, and in the interests, of the sole owner. Rather it was an attempt to legitimise the informal will; with the veracity of that document held by the court to be best tested following the death of the sole owner, assuming a court application was then made for the informal will to be admitted to probate.
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** For the trainspotters, the title of today's post is riffed from the Hunters and Collectors song 'Easy'.

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