Statutory Wills

  1. The proceedings were brought by Anthony under Div 2 of Pt 2.2 of the Succession Act, which consists of ss 18 to 26. Section 18(1) relevantly provides that the Court may, on application by any person, make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity (a statutory will). An order under s 18 of the Succession Act may authorise the making of a will that deals with the whole or part of the property of the person who lacks testamentary capacity. However, the Court is not to make an order under s 18 unless the person in respect of whom the application is made is alive when the order is made. A will that is authorised to be made must be deposited with the Registrar, but a failure to comply with that requirement does not affect the validity of the will.
  2. Section 19(1) of the Succession Act provides that a person must obtain the leave of the Court to make an application for an order under s 18. In applying for leave, the person must give the Court the information specified in s 19(2). Section 20 provides that, on hearing an application for leave, the Court may give leave and allow the application for leave to proceed as an application for an order under s 18 and, if satisfied of the matters set out in s 22, make the order. Section 22 relevantly provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that:
  1. there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will;
  2. 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;
  3. it is, or may be, appropriate for the order to be made;
  4. the applicant for leave is an appropriate person to make the application; and
  5. adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application.

Look at the decision of this appeal here;