Law Reform, Capacity and Statutory wills: how to get inside the testatorrsquo;s head
Rosalind F Croucher[1]*
Testamentary capacity is the defining precept for making wills in the common law. Until the creation of lsquo;statutory willsrsquo;—the ability to make a will for a person under some statutorily authorised scheme—the entire focus was on the mental capacity of the testator. It was a legal definition but one that necessarily involved medical and psychiatric evidence. Statutory wills are made by the court where the testator has no capacity at all, or has lost the capacity they had. This paper considers the significance of the introduction of statutory wills as an aspect of the law reform of the law of wills generally as well as a consideration of the technicalities of the exercise of seeking approval for a statutory will through a study of the case law in the area.
I Introduction
Mrs Maria Korp disappeared on 9 February 2005. On 13 February she was found—strangled and left for dead in the boot of her car. She remained in a coma until her life support was terminated and she died on 5 August. Her husbandrsquo;s mistress, Tania Lee-Ann Herman, was found guilty of her attempted murder. Mariarsquo;s husband, Joe, was also charged with the attempted murder of his wife, but died in an apparent suicide on the day after his wifersquo;s funeral. The whole ghastly story is told by Carly Crawford described on the cover as lsquo;The Woman in the Boot Storyrsquo;.[2]
From the succession law point of view, however, there was a fascinating sub-plot: the power to make a will for a person—the statutory will. Maria Korp had left her whole estate to her husband if he survived her, but if he predeceased her, she gave the whole of her estate to her two children. The Victorian Supreme Court made a new will for her—one that removed her husband as executor and beneficiary.[3]
The idea of a lsquo;statutory willrsquo;—and a whole host of other matters—were considered as part of the Uniform Succession Laws project, that has been working its way through succession law in Australia since 1995.[4] In June that year the Queensland Law Reform Commission released an Issues Paper, The Law of Wills (WP 46). The National Committeersquo;s final report—Consolidated Report on the Law of Wills (MP 29)—was presented to the Standing Committee of Attorneys-General in December 1997. It was reproduced as Uniform Succession Laws—The law of wills (NSWLRC Report 85) of the New South Wales Law Reform Commission in 1998.[5] It included a Model Wills Bill prepared by the New South Wales Parliamentary Counselrsquo;s Office to be used as the basis for reform by individual states and territories.
The wills amendments are not revolutionary, but continue the pattern of past reforms—fixing up problematic points here and there; picking up new provisions from other jurisdictions; and harmonising the lsquo;best bitsrsquo; from amongst the Australian jurisdictions.
II Testamentary Capacity
To establish the requisite mental capacity to make a will, a person has to have an understanding of the property available for disposal and the claims that should be considered on the personrsquo;s bounty. In the leading case in this area, the mid-19th century case of Banks v Goodfellow, this was explained by Cockburn CJ as meaning that:
a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.[6]
Just over half a century later, in the High Court decision in Timbury v Coffee,[7] Rich ACJ restated this in saying that the testator
must know what he is about, have sense and knowledge of what he is doing and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty.[8]
Testamentary capacity, in the sense of a mental threshold, was defined, therefore, not merely by reference to the property which would be subject to an exercise of that power, but also as having some moral component. A person was required to be aware of lsquo;claims upon his regard and bountyrsquo;, hence if a will deliberately excluded the next-of-kin, affirmative proof of capacity became an issue, and likewise if the preparer of the will, being a stranger in blood, took substantial benefits under it.[9] But the basic point remained, that lsquo;[t]he freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with onersquo;s own property. As one can be in onersquo;s lifetime, so, by law, a testator can be at deathrsquo;;[10] and in deciding questions of testamentary capacity, judges lsquo;must steadfastly resist the temptation to rewrite the wills of testators which they regard as unfair, unwise or harshrsquo;.[11]
Such an approach serves to underscore the important role of
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Law Reform, Capacity and Statutory wills: how to get inside the testatorrsquo;s head
Mrs Maria Korp disappeared on 9 February 2005. On 13 February she was found—strangled and left for dead in the boot of her car. She remained in a coma until her life support was terminated and she died on 5 August. Her husbandrsquo;s mistress, Tania Lee-Ann Herman, was found guilty of her attempted murder. Mariarsquo;s husband, Joe, was also charged with the attempted murder of his wife, but died in an apparent suicide on the day after his wifersquo;s funeral. The whole ghastly story is told by Carly Crawford described on the cover as lsquo;The Woman in the Boot Storyrsquo;.[1]
From the succession law point of view, however, there was a fascinating sub-plot: the power to make a will for a person—the statutory will. Maria Korp had left her whole estate to her husband if he survived her, but if he predeceased her, she gave the whole of her estate to her two children. The Victorian Supreme Court made a new will for her—one that removed her husband as executor and beneficiary.[2]
The idea of a lsquo;statutory willrsquo;—and a whole host of other matters—were considered as part of the Uniform Succession Laws project, that has been working its way through succession law in Australia since 1995.[3] In June that year the Queensland Law Reform Commission released an Issues Paper, The Law of Wills (WP 46). The National Committeersquo;s final report—Consolidated Report on the Law of Wills (MP 29)—was presented to the Standing Committee of Attorneys-General in December 1997. It was reproduced as Uniform Succession Laws—The law of wills (NSWLRC Report 85) of the New South Wales Law Reform Commission in 1998.[4] It included a Model Wills Bill prepared by the New South Wales Parliamentary Counselrsquo;s Office to be used as the basis for reform by individual states and territories.
The wills amendments are not revolutionary, but continue the pattern of past reforms—fixing up problematic points here and there; picking up new provisions from other jurisdictions; and harmonising the lsquo;best bitsrsquo; from amongst the Australian jurisdictions.
II Testamentary Capacity
Testamentary capacity, in the sense of a mental threshold, was defined, therefore, not merely by reference to the property which would be subject to an exercise of that power, but also as having some moral component. A person was required to be aware of claims upon his regard and bountyrsquo;, hence if a will deliberately excluded the next-of-kin, affirmative proof of capacity became an issue, and likewise if the preparer of the will, being a stranger in blood, took substantial benefits under it.[5] But the basic point remained, that lsquo;[t]he freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with onersquo;s own property. As one can be in onersquo;s lifetime, so, by law, a testator can be at deathrsquo;;[6] and in deciding questions of testamentary capacity, judges lsquo;must steadfastly resist the temptation to rewrite the wills of testators which they regard as unfair, unwise or harshrsquo;.[7]
Such an approach serves to underscore the important role of the real testator and his or her judgments about property on death as expressed in the will—even if such judgments may be considered lsquo;unfair, unwise or harshrsquo; to the outside observer (including the court).
A lsquo;statutory willrsquo; is a will made for a person who lacks testamentary capacity as it is now understood. There are two kinds of people who may lack capacity: those below the stipulated age of majority; and those who are non compos mentis in the sense of failing the Banks v Goodfellow test. The motivation for including statutory wills provisions was to include a mechanism to override the default provisions of intestate distribution that would otherwise apply in particular cases, or to change a prior will, where the relevant person had capacity before, but has since lost it—like Maria Korp. The Uniform Succession Laws project endorsed the inclusion of statutory will provisions in the model wills legislation in both cases. It is the wills for those who lose capacity that are the focus of my talk today.
III Statutory Wills Provisions—Wills for Those non compos mentis
The Succession Act 2006 (NSW) includes new statutory will making provisions for those who lack capacity, following on the recommendations of the Uniform Succession Project. The Act commenced on 1 March 2008 and the provisions with respect to statutory wills apply to wills made on or after that date.[8] Where a will was made before 1 March, however, the court may make an order with respect to the alteration or revocation of a will or part of a will.[9] The New South Wales provision will be used as the reference point for discussion in this paper.
The key part of this provision is the phrase lsquo;could be madersquo;. In the provisions that have been introduced in Australia, there are differences in the language—and in construing legislation the nuance in the wording may be everything. The proposed clause 21 of the model Wills Act required that the will be one that lsquo;might bersquo; made by the person if he or she had testamentary capacity.[10] Some use the
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