Since 1 March 2008 the Supreme Court has been authorised by sections 18 to 26 inclusive of the Succession Act 2006 to make a Will for a person who lacks testamentary capacity and also to alter or revoke totally or partially a Will of a person who lacks testamentary capacity.
Examples of circumstances in which an application for a Court authorised Will might be considered might include the need to adjust beneficial entitlements under an existing Will or on intestacy such as changes in relationships or circumstances between the Will-maker or intestate and beneficiaries, resolving anticipated estate problems, and relevant estate planning issues.
In granting leave for the application for a Court authorised Will, the Supreme Court must be satisfied with the information listed in section 19 (2) including the reason for seeking a Court authorised Will and also satisfied that the Will maker lacks testamentary capacity. In addition, the Court must be satisfied that the proposed Will, alteration or revocation of an existing Will would be reasonably likely to be made by the person if that person had testamentary capacity.
An application for a Court authorised Will may be made by an appropriate person in accordance with section 22 (d). Although not defined, an appropriate person may include a guardian, an attorney, a solicitor acting for a long standing client after the client has lost capacity, family members, and the Minister for Family and Community Services. In any application made by a person who will benefit from a Will proposed for Court approval, the Court will exercise vigilance in considering the possible subjective or objective intention of the Will maker in authorising a Will.
Lack of testamentary capacity may occur in the following circumstances:
“Lost capacity” in adulthood as a result of disease.
“Nil capacity” ever acquired as a result of birth defects or disease acquired before development of testamentary capacity.
“Pre-empted capacity” in childhood, in circumstances of a minor who developed temporary testamentary capacity prior to acquiring a disease which resulted in loss of testamentary capacity.
On 8 August 2014, His Honour Justice Lindsay published his reasons for a Court authorised Will in an alternative form to that initially proposed by the Minister of Family and Community Services in respect of a 13 year old child being cared for by foster parents, under the parental responsibility of the Minister of Family and Community Services Secretary, Department of Family & Community Services v K  NSWSC 1065. The Court authorised Will makes provision for the child’s estate (comprising monies received as a result of victim’s compensation) to be divided between the child’s mother as to a half share of her estate, and the remaining half share to her foster parents.
In exercising its protective jurisdiction, any application for a Will to be authorised by the Supreme Court will be determined pursuant to the Succession Act 2006 on the individual facts and circumstances placed before the Court.