Having a will in place is the best way to try and make sure that a person’s wishes are honoured when they pass away, and to make the process easier on those left behind who are dealing with grief.
For a person to prepare a will they need the capacity to understand the nature of the document. Unfortunately, due to injury or illness, many people lose this testamentary capacity during their lives, or potentially never had the chance to obtain it, such as minors.
The Succession Act attempts to outline the appropriate people to received the estate of a person who has passed away without a will, however these proposed beneficiaries are not always the beneficiaries that the deceased would have wanted to gift their assets to if they had a say.
In other cases, where a person has taken the opportunity to prepare a will, and subsequently lost capacity, due to passage of time, this old will may no longer reflect what their current wishes would have been had they had the chance.
The Supreme Court of NSW is authorised per the Succession Act 2006 (NSW) (“the Act”) to make or amend a will on behalf of a person who lacks testamentary capacity pursuant to s18(1) Succession Act 2006 (NSW) (“the Act”).
Information for the Court
Where the Court grants leave to the person applying for a will to be made or amended for another person who lacks capacity, it shall consider the require and consider the following information:-
- evidence of the lack of testamentary capacity of the person in relation to whom an order under s 18 of the Act is sought;
- the size and character of the estate of the person in relation to whom an order under s 18 of the Act is sought;
- a draft of the proposed will for which the applicant is seeking the court’s approval;
- any evidence of the person’s (testator who no longer has capacity) wishes;
- any evidence of the likelihood of the person acquiring or regaining testamentary capacity;
- any evidence of the terms of any will previously made by the person;
- any evidence of any persons who might be entitled to claim on the intestacy of the person;
- any evidence of the likelihood of a Family Provision claim being made in respect of the property of the person;
- any evidence of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person;
- any evidence of a gift for a charitable or other purpose that the person might reasonably be expected to make by will; and
- any other facts that are relevant to the application.
Where the will is ordered to be made
The authorised will must be deposited with the Registrar of the Court, and then signed by the Registrar and sealed with the seal of the Court.
The will remains with the Registrar unless the Court later revokes the will, or of the persons regains testamentary capacity.
It is always advisable where possible to make a will when a person still has capacity.
To discuss making a will or an application for a Court authorised will, contact Baker Love Lawyers on (02) 4944 3322.