The Supreme Court of NSW heard an application for leave to apply for a statutory will on 16 August 2010.

Pursuant to the provisions of s18 of the Succession Act 2006 (NSW) the Court has authority to make a will for a person who lacks testamentary capacity.

In this application the person who lacked testamentary capacity – Vincent – was 40 years of age and was born with Downs Syndrome. He has never had capacity to look after himself or his own financial affairs. The Court was satisfied that Vincent was incapable of making a will and would never have testamentary capacity.

The application was commenced by Vincent’s sister, Lina.

The Court heard that, in addition to his parents, Vincent has three sisters and a younger brother. His father left the family some twenty years ago and Vincent’s siblings (with the exception of Lina) had not been involved in Vincent’s care for at least fifteen years.

Lina and Vincent’s mother have been Vincent’s primary carers.

As Vincent is unmarried and without children, if Vincent died without a will his estate would pass to his parents equally pursuant to the NSW intestacy laws.

Vincent has a small estate – a term deposit of approximately $63,000.00 – which was originally a gift from his mother for his future care.

The Court authorised a will be made for Vincent leaving all of his estate to his mother, or if she fails to survive him, to his sister, Lina.

The Court dispensed with the need to give notice of the proceedings to the other family members. It is a requirement pursuant to s22(e) Succession Act 2006 (NSW) that “the Court be satisfied that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

The Court was “satisfied that, had Vincent had testamentary capacity, it is reasonably likely that this is the disposition that he would have made.” at [5].

The Court took into account the following factors:

  • the size of the Vincent’s estate;
  • the fact that it was derived from a gift from his mother;
  • the mother’s financial position; and
  • the sister’s long-term involvement in the care of Vincent.

By Judy Hayward

Judy is the co-author of Smokeball’s Enduring Power of Attorney Practice Manual.

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