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Groves, M --- "As the Court Wills" [2009] UMonashLRS 7

Last Updated: 20 April 2011

As the Court Wills

The Wills Act 1997 (Vic) enables the Surpeme Court to make, amend or revoke on a will on behalf of people who are deceased or who cannot do so themselves. This provides certainty when people are unable to manage their own affairs.
By: Matthew Groves[1]

People who make, amend or revoke testamentary dispositions must be able to understand the nature and effect of those dispositions. People who lack this capacity may regain it, sometimes even temporarily, and make a valid will.[2] But many people never regain testamentary capacity, while others may never possess it. The Wills Act 1997 (Vic) (the Act) enables the Supreme Court to make, amend or revoke a will on behalf of people who lack testamentary capacity. This jurisdiction provides an important means to manage the testamentary affairs who cannot do so themselves.[3]

What orders may be made?
The Supreme Court has wide orders to make or revoke a will on behalf of people who lack testamentary capacity.[4] It may order a new will be made on behalf of someone who has no will,[5] or an existing will be altered,[6] or appoint a new personal representative to the estate.[7] This range of orders enables the court to fashion an order to ensure the management and distribution of the estate as it thinks appropriate.

Reasons to seek an order
Orders are usually sought when it is believed that a person for whom the order is sought would intend, or could be reasonably thought to intend, that their estate should be distributed differently than would otherwise occur. Where someone has no valid will, an order might be sought if there was reason to believe that person would not want his or her estate distributed as would occur in an intestacy. For example, an elderly or infirm person with several children or other relatives, all of whom were entitled to equal shares in an intestacy, may have a sole carer. A statutory will could provide a larger benefit to the carer to reflect the likely intention of the testator.

If there is a will, an application may be appropriate to take account of changed circumstances. The cases examined later in this article suggest that the ending of a relationship or very bad behaviour by a beneficiary can provide a strong foundation for an application for a statutory will. In such cases, the courts have accepted that testators would wish to alter their testamentary affairs accordingly.

It may not be strictly necessary to seek an order when a person is subject to some form of guardianship order. The Supreme Court recently confirmed that the statutory test to appoint a guardian for people deemed unable to manage their affairs is different to that for an order for a statutory will.[8] Accordingly, the grant of a guardianship order may not itself prevent the person to whom the order applies from making a will or require that any such will be made as a court order will. The key point would be whether that person was found to have sufficient capacity to make a will.

The requirement to obtain leave of the Court

A person may only seek a court authorised will if granted leave by the Supreme Court.[9] The courts have held this leave requirement enables baseless claims that a person lacks testamentary capacity to be filtered out.[10] There is, however, a clear overlap between the application for leave and the making of a final order because the provisions governing leave applications include wide rights of appearance and require the court to determine matters similar to the substantive issues explained below. The court may determine leave applications and final orders as one but the Act provides no clear guidance on when to do so.[11] In Boulton v Sanders[12] the Court of Appeal suggested this should occur in a “clear case”. This approach is consistent with other cases in which an application for leave and a final order have been heard as one, which have not involved any dispute that the person for whom the will is sought lacks capacity or that the evidence did not meet the requirements to make a final order.[13]

Who may seek a statutory will?

The Act does not specify who may apply for a statutory will but obvious applicants include those with an interest in the person’s estate or the management of their affairs, such as an existing or potential beneficiary, a guardian or someone named as a personal representative under an existing will. If there is no such person, the State Trustees may be a suitable applicant.[14]

Who is entitled to appear?

Wide rights of appearance are granted to those who may be affected by an application. This includes the person on whose behalf a will is sought and people who may act in the interests of that person, such as a lawyer, guardian, administrator or a person appointed under an enduring power of attorney.[15] Any other person who the court believes has “a genuine interest in the matter” also has a right to appear.[16] This category would likely include any party who might receive or be denied a testamentary benefit under an existing or proposed will, or might claim an interest under an intestacy or family provision claim. The Supreme Court has held that applicants should seek out such people before an application and inform them of the nature of the application, to enable these people to decide whether to attend the hearing.[17]

Powers of the Supreme Court

The Supreme Court may require applicants to provide information on any issue relevant to the proposed order, including: why the application has been made; an estimate of the size and character of the estate; evidence of the wishes of the person for whom the order is sought; evidence of previous wills made by the person; any likely family provision that might be made on the estate and whether there is anyone who might reasonably be expected to be provided for under the will; who would be entitled to claim under an intestacy; any possible gifts the person might reasonably be expected to make; the likelihood of the person regaining testamentary capacity; and any other relevant evidence available to an applicant.[18] This list provides a useful indication of the material applicants should prepare.

Matters the Supreme Court must be satisfied on before granting an application

Section 26 of the Act contains three key requirements that must be satisfied before the court may grant leave.

  1. The person lacks testamentary capacity (s26(a))

The Court must be satisfied that the person for whom a statutory will is sought does not have testamentary capacity. The leading case of Banks v Goodfellow[19] establishes that testamentary capacity requires a person: can understand the nature and effect of a testamentary disposition; can understand the nature and extent of his or her property that will be disposed of; can comprehend and appreciate the claims that on the estate which ought to be given effect; and is not affected by an insane delusion which might influence the will or disposition of any property. These issues are not directed to determining whether a person suffers a mental disability but the more specific issue of whether any condition may affect the person’s ability to understand a testamentary transaction. Evidence on this point is crucial in applications for a statutory will and the cases to date suggest that the court will be guided by reports from doctors and carers familiar with the person for whom the order is sought.

  1. Does the order sought reflect the likely intentions of the person? (s26(b))

The court must also be satisfied that the proposed order reflects the intentions of the person for whom it is sought, though the content of this recently amended requirement is best understood in light of its original format. When first enacted s26(b) required the court be satisfied that the proposed order “accurately reflects the likely intentions of the person, if he or she had testamentary capacity”. Initial cases held that the need for an order to “accurately reflect” the person’s wishes meant that the will must “reproduce the person’s intentions with a substantial degree of precision and exactitude”.[20] There was, however, a clear tension in the requirement that the order “accurately” reflect the person’s “likely” intentions because each term could be seen to pull to a slightly different level of satisfaction.

In 2007 s26(b) was amended and the requirement that orders “accurately reflect” the person’s likely intentions was removed. A proposed order must now reflect what the “likely intentions” would be if he or she had capacity, or what the person’s intentions “might be” if he or she had capacity. This amendment has two important consequences. First, the ability of the court to consider what the intention of the person “might be” enables it to make a reasoned judgement on the presumed intentions of people who do not and will never have testamentary capacity. This possibility is important to those seeking an order for someone born with severe intellectual impairment or who suffers a catastrophic injury or illness early in life. There is English authority suggesting that a person who has never developed capacity should be assumed to be “a normal decent person, acting in accordance with contemporary standards of morality”, which the court decides by identifying and giving effect to the objects the person would wish.[21] Whether this approach will be adopted in Victoria remains to be seen.

The second consequence of the amendments to s26(b) is to loosen the standard of satisfaction a court must reach. This casts doubt over earlier cases where courts had declined to make an order because they were unsure what the person would likely have wished. An example is Re Fletcher[22] where Byrne J declined to make an order that would have essentially adjusted the entitlements of children to take account of inter vivos gifts they had received. Byrne J could not determine what the person would have intended about the gifts one son had received – would she wish them repaid or taken into account in the distribution of her estate? His Honour was unsure and therefore held the proposed order could not “accurately reflect” the mother’s intentions. This conclusion accords with the later case of Boulton v Sanders where the Court of Appeal cautioned that s26(b) did not allow the court to approve the will a person might have wanted rather than die intestate because the court was not convinced the person would have wanted to make a will. If so, how could it approve any will? The important underlying point made by the court was that the (then) wording of s26(b) required the court to approve a will in terms it thought the person, rather than the judge, would wish.[23]

A difficult question arising from the recent amendments to s26(b) is whether the removal of the requirement that the proposed order “accurately reflect” the intentions of the person and the ability of the court to issue an order on the basis of what the intentions of the person “might reasonably expected to be” enable the court to fashion an order when there is no clear evidence on what the person wanted. The answer is almost certainly yes, though the basis upon which the court would now act is not yet settled.

Some guidance can be drawn from earlier cases. In the first Victorian application[24] Gillard J decided drew support from five guiding principles adopted in the English case of Re D (J)[25], which are:

These principles are instructive to explain the various orders that Victorian courts have issued. In several cases, for example, the courts have approved orders that removed gifts to beneficiaries who the person was previously very close to because the beneficiary had acted badly since the person lost capacity. In State Trustees v Hadyen[26] Mandie J approved an order that removed a beneficiary who he decided had acted ‘reprehensibly’ in his management of the person’s affairs. His Honour concluded that, while the person for whom the will was sought had held great affection for the beneficiary, she would have responded as any normal and decent person would to his behaviour and amended her will to exclude him. Mandie J reached a similar conclusion in De Gois v Korp,[27] holding that a woman would, if she had capacity and knew her husband helped his mistress plan to kill her, wish to amend her will to exclude any benefit to her husband. Such cases make clear that even the closest relationship can, in appropriate circumstances, be presumed to have changed sufficiently to support an order for a significantly amended will.

There are, of course, many less sensational cases that can provide a sufficient basis for a court to approve a statutory will. In one case the court approved an order that altered the will of a woman so as to remove gifts to a man she with whom she had broken off a relationship shortly before an accident that robbed her of capacity. The proposed will instead made gifts to the hospital where the woman was cared for, where she had also worked tirelessly before her accident.[28] In another the court altered gifts to a charity so that a woman’s modest estate went to her only daughter.[29] Their relationship was difficult relationship due to the daughter’s mental illness but the court reasoned the mother would have ultimately acted on the wishes she had expressed and provide for her daughter.

  1. Is the proposed order reasonable in all the circumstances? (s26(c))

The Court of Appeal described this requirement of reasonableness as one of “curial discretion”.[30] This discretion enables the court to decline an application that otherwise meets other requirements for the grant of an order. If the circumstances of a case give the court reason to doubt that a proposed order is in the best interests of the person over whom it is made, the court would surely be right to refuse the application by exercise of this discretion.


An order to make, amend or revoke a will can provide certainty for people unable to manage their own affairs. This certainty may be valuable to people for whom a will is made, their likely beneficiaries and those who administer the person’s affairs. It is clear, however, that orders are not granted automatically upon proof that a person lacks testamentary capacity. An application must also satisfy the court that the proposed order sufficiently reflects the likely or expected intentions of the testator. The proposed order must therefore reflect the presumed wishes of the person for whom it is made rather than those who seek it.

[1] MATTHEW GROVES teaches in the Law Faculty at Monash University.
[2] For example Timbury v Coffey [1941] HCA 22; (1941) 66 CLR 277; Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295.
[3] A separate jurisdiction exists to authorise wills of children: Wills Act 1997 (Vic) s20.
[4] Section 21(1) of the Act.
[5] For example Monger v Taylor [2000] VSC 304.
[6] For example Hill v Hill [2001] VSC 83; Plowright v Burge [2005] VSC 490.
[7] For example State Trustees v Hayden [2002] VSC 98; (2002) 4 VR 229.
[8] Edwards v Edwards [2009] VSC 190 at [53]- [61]
[9] Section 21(2) of the Act.
[10] Monger v Taylor, note 4 above at [22]; Boulton v Sanders [2004] VSCA 112; (2004) 9 VR 495 at 499 [11].
[11] Section 27(1) of the Act.
[12] Boulton v Sanders, note 9 above.
[13] For example Monger v Taylor, note 4 above; Hill v Hill, note 5 above.
[14] For example State Trustees v Hayden, note 6 above.
[15] Sections 29(a)-(d) of the Act.
[16] Section 29(e) of the Act.
[17] Monger v Taylor, note 4 above at [25]-[29].
[18] Section 28 of the Act.
[19] (1870) LR 5 QB 549 at 565.
[20] State Trustees v Hayden, note 6 above at 241 [39]; Boulton v Sanders, note 9 above at 515 [111]-[112].
[21] (Re C (a patient) [1991] 3 All ER 866, cited in Re Fletcher; Ex parte Papaleo [2001] VSC 109 at [19].
[22] [2001] VSC 109.
[23] The need to consider the actual rather than hypothetical person was also stressed in Monger v Taylor, note 4 above at [68].
[24] Monger v Taylor, note 4 above.
[25] [1982] Ch 237 at 243-4.
[26] [2002] VSC 98; (2002) 4 VR 229.
[27] [2005] VSC 326.
[28] Plowright v Burge, note 5 above.
[29] [2001] VSC 83.
[30] Boulton v Sanders, note 9 above at 499 at [13].

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