Clarification of the Court’s approach to Statutory Wills in Western Australia

There have been few Statutory Will applications in Western Australia, which is surprising because the threshold under s 42 of the Wills Act 1970 (WA) is lower than in the other States and Territories – the Court need only be satisfied that the suggested Will “is one which could be made by the person concerned if the person were not lacking testamentary capacity” (s 42(b)).

R v J [2017] WASC 53 is the first decision in which the Court has considered, in any detail, the requirements for the authorisation of a Statutory Will.  Chaney J observed that:

“The distinction between the Western Australian provision and that in other States (apart from the absence in this State of any requirements for leave) is the absence of any reference in s 42 to the likely intentions of the incapable person or any reference to the will being one that would have been, or would reasonably be likely to have been, made by the incapable person.  All that s 42 requires is that the will is one which could have been made by the incapable person.”

The judgment contains an analysis of how the Court is to approach the task of determining whether s 42(b) is met,  After considering the English decisions that pre-dated the enactment of the legislation in Western Australia, his Honour found that:

“There is no provision in s 42 of the Wills Act which makes reference to what might reasonably be expected of the incapable person nor to provision being made for other persons or purposes.  On the other hand, it is clear that the matters which must be furnished to the court under s 41 are relevant considerations, in the sense of matters to which the court is required to have regard, in exercising its discretion.  Those factors suggest that, in exercising what appears to be a very broad discretion, the court will have regard to the incapable person’s wishes so far as they might be ascertainable, and give objective consideration to appropriate provision for those who might reasonably expect to benefit from the incapable person’s estate having regard to the nature and value of the assets and liabilities of the estate.  The requirement to have regard to possible claims under the Family Provision Act 1972 (WA) suggests that the court should be mindful to ensure adequate provision is made for those who would have standing to apply for relief under that Act.  The task of the court is to make a will which in the court’s judgment reflects an objectively proper disposition of the incapable person’s estate giving weight to, but not being bound by, the wishes of the incapable person insofar as they can be reliably ascertained.  The test thus involves both subjective elements and objective elements.”

The general thrust of the application in this case was that the proposed testator, who was 91 years old, had upon the death of her first husband sold a house property in which they had both lived, and placed the proceeds in one or more bank accounts.  She had lost testamentary capacity.   The applicant for the Statutory Will was the daughter of the proposed testator’s second marriage.  She sought the authorisation of the making of a Will that would provide for a gift of two bank accounts, said to contain the proceeds of the sale of that house property, to the two children of the proposed testator’s first marriage.

His Honour was not satisfied as to the terms of the proposed Will.  In particular, it limited the benefits that would be received by the two children from the first marriage, to the two identified accounts, which may be be less than their entitlement on intestacy.  The substitutionary provisions were also unsatisfactory.

Various other difficulties were identified, including the failure of the applicant to sufficiently identify the assets of the proposed testator’s estate.

The fact that the affected family members supported the application was not sufficient to overcome these difficulties:

“A feature of this case is that the likely beneficiaries of J’s estate, whether under the proposed will or under intestacy, consent to the making of the proposed will.  That is a not insignificant factor in favour of making the proposed will.  It is not, however, determinative.  The object of s 40 is not to, in effect, confer will making power of an incapable person on the likely beneficiaries of that person’s deceased estate.  It is for the court to exercise its discretion, having regard to the information provided in accordance with s 41 of the Wills Act, as to whether a will in the terms proposed should be made.”

The application was dismissed.

A copy of the judgment is accessible here.