In Re Fenwick (2009) 76 NSWLR 22, Palmer J outlined three ‘categories’ of statutory will cases – lost capacity, nil capacity and pre-empted capacity. Of these three, the nil capacity cases pose the most difficulty in practice because it is impossible to ascertain the subjective testamentary intention of the person for whom the will is proposed to be made. Instead, the Court must embark on an entirely objective consideration of whether the ‘core test’ (e.g. in NSW, s.22(b) of the Succession Act – whether the proposed will is, or is reasonably likely to be, one that would have been made by the person if they had testamentary capacity) is met.
The recent decision of W, DJ  SASC 45 is therefore of particular interest. The parties reached agreement as to the terms of a proposed will. Those terms were relatively complex. Gray J was not satisfied that the proposed will accurately reflected the likely intentions of DJW if he had testamentary capacity. It was clearly desirable for an intestacy to be avoided. His Honour identified, on the evidence, different terms that would reflect DJW’s likely testamentary intentions. The Probate Registrar was requested to prepare a draft will in accordance with those terms, and an order was made authorising the making of that will. The case also highlights the importance of ensuring that all relevant facts are disclosed to the Court.
The judgment is accessible here.