Court refuses will for dementia sufferer


In the recent case of R v J [2017], the Western Australian Supreme Court rejected an application to make a will for a woman who no longer had capacity to do so.

Julia is currently 91 years old. She has been married to Henry for 51 years and suffers from diminished mental function as a result of dementia. She was previously married, with her first husband passing away in 1953. Julia has two children from her first marriage, Gordon and Kirk, and one child from her second marriage, Rosie.

Julia lost capacity to make a will as a result of the severity of her dementia. As she did not have a will, Rosie made an application under section 40 of the Wills Act 1970 (WA) to have the court make her mother a will on proposed terms, otherwise known as a ‘statutory will’.

Henry, Gordon and Kirk all consented to the proposed will for Julia. Despite this, the Court rejected Rosie’s application for several reasons including inconsistencies of evidence, and the risk that Gordon and Kirk would end up receiving significantly less than if Julia was to pass without a will. Accordingly, Julia will pass away without a will and her assets will be dealt with under the statutory laws of intestacy irrespective of the present wishes of her family.

Court-made Wills

The Court pointed out that the ability of the Court to effectively make a ‘statutory will’ does not confer a will-making power on the potential beneficiaries of a will maker who has lost capacity. It simply permits the Court to make a will on the balance of both the proposed terms and the information provided to it.

The court highlighted that some of the matters a Western Australian court must consider in granting such an application include:

  • an estimate of the value of assets and liabilities of the person concerned
  • any evidence as to the wishes of the person concerned
  • evidence that the applicant has made reasonable enquiries as to the possibility of a Family Provision Act 1972 (WA) claim

Could this have been avoided?

Absolutely – if Julia had an up-to-date and valid Will at the time she lost capacity, her wishes would have been formally expressed. This would have eliminated any issue of disproportionate distribution among her children, and prevented Julia’s assets being distributed under the law of intestacy upon her passing.

A professionally drafted will is a significantly small cost compared to the cost of litigation for a statutory will, and reduces the risk of assets being dealt with otherwise than in accordance with the will maker’s wishes.

By Olivia Agosti, Solicitor

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