The legal principles of Statutory Wills in Queensland

Statutory wills were introduced into the Act by amendments in April 2006. The scheme of the Act requires a person who seeks an order under s 21 of the Act to first apply for leave under s 22.

Only after an order for leave is made does the Court proceed to hear the substantive application going to whether the proposed will or codicil is or may be a will that the testator would make were they to have testamentary capacity.

On the hearing of an application for leave, the applicant must give the Court certain information which includes:

(a)  evidence of the lack of testamentary capacity and the likelihood of the person ever regaining capacity;

(b)  the size and character of the estate;

(c)  a draft proposed will;

(d)  any evidence of the person’s wishes;

(e)  evidence of any previous will;

(f)  evidence pertaining to the likelihood of a Family Provision Application;

(g)  evidence relevant to gifts which the person might have given to charities or otherwise;

(h)  evidence as to whom the person might have been expected to provide for under their will;

(i)  evidence of any persons who might be entitled to claim on intestacy;

(j)  other relevant facts.

The Court may only give leave if it is satisfied that;

(a)  the applicant for leave is an appropriate person to make the application;

(b)  adequate steps have been taken to allow representation of all persons with a proper interest in the application;

(c)  there are reasonable grounds for believing that the person does not have testamentary capacity;

(d)  the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity; and

(e) it is or may be appropriate for an order to be made under s 21 in relation to the person.

On the hearing of an application for leave, the Court:

(a) may have regard to any information given to the Court under s 23; and

(b) may inform itself of any other matter relating to the application in any way it considers appropriate; and

(c) is not bound by the rules of evidence.

On the hearing of the application, the focus of the enquiry ought to be on the words “is or maybe a will the person would make”.

The guiding principle is that whatever is done, or not done, must be for the benefit of the incapacitated person.

Even though the wishes of the proposed testator are relevant, the wishes of a person who does not have capacity do not carry the same weight as those of someone who does.

Statutory wills – some additional observations by the judge.

The statute makes clear that there are two distinct stages in a proceeding of this kind. The discretionary power to grant leave is exercised in accordance with the provisions of the Act. The Act  imposes “a substantial constraint upon the exercise of the discretionary power to grant leave”. The requirement for leave does more than filter out vexatious or clearly unmeritorious applications for a statutory will. The discretionary power to grant leave is distinctly separate from the discretionary power conferred under the Act.

Whilst the issues for my determination may give the appearance of issues in dispute between parties to adversarial litigation, this proceeding is not governed by the rules of adversarial litigation. Although the resolution of those issues will affect interested parties in a very material way, this is not a dispute between the parties, particularly those parties who stand to benefit under any statutory will. As noted earlier in relation to the agreed principles, the guiding principle is that whatever is done, or not done, must be for the benefit of the incapacitated person. In discussing the comparable provisions of the New South Wales Act, Palmer J in Re Fenwick stated in one of the first cases in relation to Statutory Wills:

“The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under Pt 2.2 Div 2 of the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way.

Before granting leave the Court must be satisfied, in terms of the Act that the proposed will “is or may be” a will that the person would make if the person were to have testamentary capacity. The words “may be” and the scheme of the Act make it possible to imagine cases in which there is more than one possible will which would satisfy the terms of the Act. The will proposed by the applicant for leave may be one. Wills in a different form, proposed by other parties, also “may be” a will that the person would make make if the person were to have testamentary capacity”.

“The proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would if he or she had testamentary capacity. The differences between them may be slight or substantial. The Act does not require that the will proposed by the applicant be the one that is most likely that the incapacitated person would have made. The will proposed by the applicant in seeking leave may require amendment in the light of evidence which emerges, draft wills proposed by other parties and suggestions by parties and the Court."

If leave is granted to make the application, then an order authorising a will to be made on behalf of the person requires proof that the person lacks testamentary capacity. If that and the other requirements of s 21 are satisfied then the Court exercises a broad and flexible jurisdiction,33 and the Court may make the order on the conditions the Court considers appropriate.

The discretion at the second stage is not constrained by express statutory criteria. Instead, the discretion should be exercised in the particular circumstances and having regard to the purpose of the legislation. Having regard to the beneficial purpose of the legislation and the protective nature of the jurisdiction, an important consideration in the exercise of the discretion under s 21 is the will the person probably would have made if he or she had testamentary capacity. Other considerations will apply in the particular circumstances, and the legislature having not listed factors, it is inappropriate and unhelpful to articulate the factors which might influence a discretion of the kind conferred by s 21.

An application for leave and an application for an order under s 21 may be heard together or the application for an order under s 21 may be heard immediately after the application for leave.35 The hearings may be on separate dates. In any event, the proposed will in respect of which leave is granted may require some modification before an order is made under s 21. 

Summary by Eric Butler