The new Succession Act came into force in NSW in February 2012. As part of the reforms, the new legislation gave jurisdiction to the Supreme Court to make an order approving a Will for a person who lacks testamentary capacity.

There have been two main cases decided by the Supreme Court since the introduction of this legislation.

In the first case, the person making the application (the Plaintiff) was the brother of the incapable person who was aged 60. The facts relating to the incapable person were:

• He had made a Will in July 1987. His estate was substantial and he had left his estate to his brother (the Plaintiff) but with provision that if his brother pre-deceased him his estate would go to his children. If no children, then the estate would pass to two of his cousins;
• He suffered a severe head injury shortly after making the will which rendered him incapable of making a new will.

The Plaintiff presented evidence to the Court that both he and the two cousins named in the Will all had life-threatening medical conditions and it was quite possible that the incapable person would outlive them all. In the event that this happened, the estate would fall to intestacy.

Under the laws of intestacy there was only one relative, an uncle who was aged over 80 years who would take the estate. The Plaintiff’s application to the court was for an approval of a codicil to the Will providing that in the event that the Plaintiff and the two cousins predeceased the incapable person, then the children of the cousins would share in the estate.

The Court approved the codicil.

The other case involved a minor who was given the pseudonym ‘Charles’.

Charles was 11 at the time that the application was made to the Supreme Court. The application was made by the Minister for Community Services. Charles had been placed under the care of the Minister after he had sustained severe head injuries at the age of 4 months.

The Defendants were Charles’ parents. The parents had been suspected of inflicting the injuries on Charles consistent with Shaken Baby Syndrome. The parents denied having caused the injuries and they had never been criminally charged. They did not, however, oppose the application of the Minister.

Charles had received an award of damages following an application to the Victims Compensation Tribunal. The money was being held in trust by the Public Trustee until he reached the age of 18.

The evidence presented to the Court was that Charles’ life expectancy was severely diminished because of his injuries. There was also medical evidence that he would never have testamentary capacity.
If Charles died intestate then the law provided that his estate would pass to his parents. The Minister brought an application to have a Will approved so that the estate would pass to Charles’ sister.

The court made the application.

Although these are rare cases it demonstrates the intention of the act in providing circumstances when it may be necessary to have a Will approved when a person is not able to make the appropriate arrangements.