The 2021 Succession Law Symposium NSW and Statutory Wills

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Our Senior Associate, Max Williams recently attended the 2021 Legalwise Succession Law Symposium, New South Wales. One of the presentations of interest to Max was by Dr Christopher Birch SC who presented on statutory wills.

A statutory will is a will effectively made by the Supreme Court on behalf of a person who lacks the mental capacity to make a will. This may be because the person is under the age of 18 years or because they have lost capacity due to illness or accident.

For the Supreme Court to exercise their discretion to make a statutory will, the Court must be satisfied, amongst other things, that the proposed will is “reasonably likely” to have been made by the person if they had capacity.

Dr Birch SC spoke about a recent NSW Court of Appeal case, Small v Phillips No.2 [2019] NSWCA 268, in which the Court of Appeal considered the “reasonably likely” requirement for the first time. In this case, the Court of Appeal overturned the initial decision of the Supreme Court not to make a statutory will. The Court of Appeal looked at the testator’s previous wills as a way of assessing the reasonable likelihood of the proposed will.

Max said it will be exciting to see more of these cases come before the Supreme Court and Court of Appeal in order to further develop this important legal innovation.

If you would like to find out more about statutory wills or will making in general, we invite you to contact us on (07) 3221 9744 or visit our website to get started online.

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