Can a Will be made for someone who lacks testamentary capacity?


Posted By and on 18/11/21 at 3:49 PM

In order to make a valid Will, you must be over the age of 18 and have what is known in legal terms as testamentary capacity.

What is testamentary capacity?

At a high level, the legal test for testamentary capacity, requires you to:

  • understand the nature and effect of making a Will; and
  • be aware of the general nature and value of your property; and
  • be aware of those persons who would have a natural claim to your estate; and
  • be able to evaluate and discriminate between such claims; and
  • not be suffering from any mental illness or disorder that impacts your capacity to make a Will.

Sometimes, for a variety of different reasons, someone may not satisfy the legal test for testamentary capacity and so they are incapable of making a valid Will. This can cause all sorts of difficulties where it can be ascertained what that persons intentions are, or are likely to be, and an intestacy (where the person dies without a Will and the law sets out who benefits from the estate) does not achieve these intentions. In other circumstances, it may be necessary and important for a minor to have a valid Will in place but, strictly speaking, they are unable to do so because they are under the age of 18.

Statutory Wills

The law in Victoria allows the Supreme Court to authorise a Will to be made for a minor or for someone who lacks testamentary capacity, in certain circumstances. This type of Will is known as a Statutory Will.

This occurred in a recent decision of the Supreme Court of Victoria in State Trustees Limited v Rick Cooper (a pseudonym) [2021] VSC 712.

State Trustees Limited (STL) was the administrator of “Jim’s” estate and successfully sought an order authorising a Will to be made on his behalf.

Jim was 75 years old, had an acquired brain injury from childhood and was suffering from chronic kidney disease with an estimated 6-12 months to live. His wife, Elizabeth, died 4-5 years earlier. Jim and his wife did not have any children. Jim had two brothers, both of whom were deceased, with one brother leaving a son, Jim’s nephew and the defendant in this proceeding. Elizabeth had a brother, Tim, and sister Jennifer (Jenny).

Upon intestacy Jim’s nephew would take his entire estate.

Jim had poor cognitive ability and limited insight into his affairs. As a result of his disability he could not make reasonable judgments about his estate and lacked testamentary capacity. STL was appointed as Jim’s administrator and Elizabeth’s brother, Tim, was appointed as Jim’s guardian.

However, Jim was able to communicate that he did not want his nephew to receive anything after he dies, and became upset when talking about his nephew. He said things to the effect of “he’s not my family”. Jim wanted his estate to pass to Elizabeth’s siblings, Tim and Jenny.

Jim’s estate was worth approximately $265,000.

The nephew did not oppose the application and accepted that it reflected Jim’s wishes.

The Court referred to the test in relation to those who lack testamentary capacity which requires the Court to be satisfied of three matters prior to making a statutory Will, namely:

  1. that the person on whose behalf the Will is to be made does not have testamentary capacity; and
  2. that the proposed Will reflects what the intentions of the person would likely be or might reasonably be expected to be, if the person had testamentary capacity; and
  3. that it is reasonable in the circumstances for the Court to authorise the Will (i.e. there are no ancillary purposes other than to fulfill the person’s wishes – it does not defeat a creditor or avoid a child’s divorce proceedings and the proposed beneficiary under intestacy is not an eligible claimant under Part IV of the Administration and Probate Act 1958 (Vic)).

The Court was satisfied of the criteria for making a statutory Will and authorised the Will appointing STL as the executor and Tim and Jenny as the equal beneficiaries.

A note of caution

However, these applications should be approached with caution. As the Court said in Beckwith (as administrator of Tarquinio, Propositus) v Tarquinio [2019] VSC 164, the test is not whether the proposed Will would be the preferable result to an intestacy or an existing Will – rather, it must be shown that the proposed Will reflects the intentions or likely intentions of the testator.

If you know someone who finds themselves or a loved one in this type of situation, please do not hesitate to contact us for assistance.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Principal Solicitor

Rachael is a highly experienced Wills & Estates lawyer. She is an Accredited Specialist in Wills & Estates with the Law Institute of Victoria, and is also a full member of the Society of Trust... Read More

Ines Kallweit Principal Solicitor & Notary Public

Ines Kallweit leads our Wills & Estates team.  She is an Accredited Specialist in Wills & Estates (with the Law Institute of Victoria), a member of the Society of Trust and Estates Practitioners,... Read More