In Western Australia (WA), recent legislative developments in 2007, have permitted the Supreme Court of Western Australia to make statutory Wills. Under the Wills Act 1970 (WA) the Supreme Court can make a statutory Will for a person who lacks the capacity to make their own Will (an ‘incapable person’). Although WA has more “relaxed” laws in this area compared with other States and Territories, it is surprising there have been so few statutory Will applications in WA.

The recent decision in R v J [2017] WASC 53 sheds some light on how the Court will consider an application for a statutory Will. It is the first decision made in WA where the Court discussed what it will consider when authorising a statutory Will.

The threshold for statutory Will applications in WA is lower than in other States and Territories. Below is a summary of the differences between WA and the other States and Territories:

WA – 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”.

ACT & NSW – The Court is required to refuse leave to make an application unless satisfied that the proposed will “is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity”.

NT – The Court is required to refuse the application unless satisfied that the proposed will “is or might be one that would have been made by the proposed testator if he or she had testamentary capacity”.

Qld – The Court must be satisfied that the proposed will “is or may be a will … the person would make if the person were to have testamentary capacity”.

SA – The application must be refused if the Court is not satisfied that the proposed will “would accurately reflect the likely intentions of the person if he or she had testamentary capacity”.

Tas & Vic[1] – The application must be refused unless the court is satisfied that the proposed will “is or is reasonably likely to be one that would have been made by the proposed testator if he or she had testamentary capacity”.

In WA, the Supreme Court need not consider what would have been the ‘likely intentions’ of the incapable person or whether the Will put forward by the applicant is a Will that ‘would have been’ or ‘would reasonably be likely to have been’ made by the incapable person. Put simply, this means the Court only needs to be satisfied that the Will could have been made by the relevant person. Given what is apparently a very low threshold, legal practitioners in WA have been uncertain about what standard of evidence was necessary to support a successful application for a statutory Will. Although each case will be decided on its merits, in light of the decision in R v J, we now have a better idea of the nature and strength of the evidence necessary for a successful application.

Justice Chaney outlined in the case of R v J that:

By reason of those distinctions, care must be taken in seeking guidance from decided cases in other jurisdictions as to the application of what is described by Williams and McCulloch in Statutory Will Applications: A Practical Guide LexisNexis Butterworths 2014 as the ‘core test’.

In this case, ‘J’ was an elderly lady who lacked capacity to make a Will because of her dementia. J’s family applied for a statutory Will to be made by the Court.

Justice Chaney analysed how the Court approaches an application for a statutory Will. While noting that section 42 sets out the criteria for the Court to apply, His Honour said the appropriate course of action is to consider the section 41 factors for guidance. Section 42 provides that in exercising its powers under section 40 the Court must refuse an application if it is not satisfied that:

1. the person concerned is incapable of making a valid Will or of altering or revoking the person’s Will, as the case may be; and
2. the suggested Will, alteration or revocation, or that Will, alteration or revocation as revised under section 43(1)(b), is one which could be made by the person concerned if the person were not lacking testamentary capacity; and
3. the applicant is an appropriate person to make the application; and
4. adequate steps have been taken to allow all persons with a legitimate interest in the application, including persons who have reason to expect any benefit from the estate of the person concerned, to be represented in the proceedings.

The relevant considerations for the Court under section 41 include:

• the reasons for the application;
• the extent of the estate;
• the proposed terms of the Will;
• any information available as to the applicant’s wishes and the contents of any previous Wills;
• the effect of the proposed Will on beneficiaries under a previous Will or on an intestacy;
• the likelihood of claims being made under the Family Provision Act 1972 (WA);
• the circumstances of persons for whom the incapable person might reasonably be expected to make provision;
• any likelihood that the person concerned might reasonably be expected to make provision for a gift to a charitable or other body; and
• any other relevant matters.

Taking into consideration all of the guidelines under section 41, His Honour Justice Chaney rejected the application for a statutory Will on a number of bases, with the most important bases being:

1. that there was no reliable basis on which to decide that J’s wishes were to cap some beneficiaries’ entitlements in the estate to a share of the proceeds of J’s real estate (as the applicants desired). His Honour said that “the evidence as to J’s wishes is generally unreliable and incomplete”; and
2. that the parties had not considered the entitlements that would otherwise have been received by the grandchildren had their parents predeceased J and had J died intestate. His Honour said that the proposed Will did not provide for that eventuality. (Effectively, the Will prejudiced the contingent interests of the grandchildren in the estate by divesting them of a potential benefit.)

His Honour added that, although the “likely beneficiaries of J’s estate, whether under the proposed will or under intestacy, consent[ed] to the making of the proposed will” (which is not an “insignificant matter”), that is not determinative.

In summary, despite the test in WA’s statutory Wills legislation appearing to be more relaxed than the corresponding laws in the Eastern States, based on the decision in R v J it is far from guaranteed that a statutory Wills application in WA will succeed.

If you would like more information about statutory Wills or estate planning in general, please contact Kimi Shah (kimi@ryandurey.com).

[1] The requirement in Victoria is substantially the same terms as the provisions in South Australia.