Statutory Wills are an essential safeguard ensuring the fair administration of a person’s estate even when they can no longer express their wishes. However, strict legal standards apply, and anyone considering an application should seek legal advice and be prepared to present comprehensive evidence.

In Western Australia, when a person lacks testamentary capacity—the Wills Act 1970 (WA) provides a mechanism for the Supreme Court to step in and approve a “statutory Will.” This legal process ensures that individuals who are incapacitated can still have a valid Will made on their behalf, but it’s not something the court does lightly.

Background

In KT, the guardian of MA v MA [2025] WASC 150, the Supreme Court of Western Australia has approved making a statutory will for an 83-year-old woman, “MA,” who is living with advanced dementia and can no longer make a valid will. The case clearly illustrates how the court applies the statutory framework to safeguard the intentions of someone who has lost testamentary capacity.

Statutory Will

Section 40 of the Act provides that the subject of the Will must be living, 18 years or older. The court may then authorise making a Will in specific terms it approves.

Section 41 outlines what the court expects to see before approving such a Will, including:

  • The reasons for seeking the statutory will
  • Details of the estate’s value and composition
  • Previous wills (if any)
  • Any known wishes of the person (to the extent evidence exists)
  • How the proposal will affect existing or potential beneficiaries
  • The likelihood of a Family Provision claim under the Family Provision Act 1972 (WA)

The court considers all these factors before making its decision 

“relevant considerations for the court include the reasons for the application, the extent of the estate, proposed terms of the will, any information available as to the applicant’s wishes and the contents of any previous wills, the effect of the proposed will on beneficiaries under a previous Will or an intestacy, the likelihood of claims being made under the Family Provision Act 1972 (WA), the circumstances of persons for whom the incapable person might reasonably be expected to make provision, any likelihood that the person concerned might reasonably be expected to make provision for a gift to a charitable or other body, and any other relevant matters.”

R v J [2017] WASC 53 at [18]

Mandatory Conditions 

Section 42 provides that the court refuse the application unless it is satisfied :

  • The person cannot make or change a Will;
  • The proposed Will is one the person could lawfully have made if they had the capacity (not necessarily what they would have made);
  • The applicant is an appropriate person to bring the application and
  • All people with a legitimate interest (e.g. family members, potential beneficiaries) have been adequately notified or represented in the proceeding.

What Is Testamentary Capacity?

The English case of Banks v Goodfellow (1870) LR 5 QB 549 provides that a person has testamentary capacity if they:

  • Understand the nature and effect of a will,
  • Understand the property they own, and
  • Can identify and weigh up the claims of potential beneficiaries.

In practice, the best evidence of capacity comes from a recent report by a qualified medical expert, such as a psychiatrist or clinical psychologist, in compliance with court rules

“127 The best evidence will always be that of a specialist professional, e.g. a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report that complies with the expert witness rules of the Court. That testing has been carried out and concludes with references to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. However, this is unnecessary if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties.

128 The next best evidence – which will suffice if there is insufficient time for a specialist’s report – is that of the patient’s treating general practitioner. Again, the report should explicitly refer to the elements of testamentary capacity enumerated in Banks v Goodfellow, except in the kind of nil capacity case I referred to.

129 The least satisfactory evidence is that of lay persons who would benefit under the proposed statutory will or codicil and endeavour to prove testamentary incapacity by giving examples of the person’s erratic or demented behaviour. The Court will treat that kind of evidence, uncorroborated by expert professional evidence, with the utmost suspicion.”

Re Fenwick [2009] NSWSC 53 at [127-129]

A Notable Distinction in WA Law

As Chaney J observed in R v J [2017] WASC 53, Western Australia‘s approach differs from other Australian jurisdictions. Section 42(1)(b) provides that the Court doesn’t have to determine what the person would have done—only whether the proposed Will is one they could have made if they had the capacity. This gives the court more discretion in shaping a just and rational outcome.

The matter

KT, the guardian of MA—v—MA [2025] WASC 150, illustrates the critical role that statutory wills can play when someone loses capacity but has previously expressed clear intentions about their estate. By using testamentary trusts, the proposed Will illustrates how flexible estate planning can accommodate the real-life complexities of modern families, from blended households to beneficiaries with special needs.

The plaintiff (who is the daughter and sole enduring guardian of the defendant) asked the Supreme Court of Western Australia to authorise a statutory Will for an older woman, MA, who had lost testamentary capacity due to dementia. The ruling provides a clear example of how section 41 of the Wills Act 1970 (WA) operates in practice and the evidentiary threshold that must be met for such an order to be made.

In circumstances where time, illness, or incapacity intervene, courts can ensure that a person’s legacy still reflects their values—provided the legal thresholds for a statutory Will are met.

The plaintiff turned to the statutory Will provisions of the Wills Act 1970 (WA) to ensure that the wishes of their elderly mother, now living with dementia, could still be respected. The applicant, “MA,” is 83 years old and was married to her husband, “DI,” for nearly 63 years before he passed away in July 2022. Together, they had three children: the plaintiff, LI, and TE. Neither MA nor DI had any other marriages or children.

The next generation of the family is diverse in its needs and circumstances. The plaintiff has two adult children. LI, who is divorced and engaged to a new partner, has twins—one of whom has Asperger’s syndrome and has difficulty managing money. TE, who is separated, has no biological children but has a stepson from his marriage.

In 2011, MA and DI made reciprocal Wills. MA left a specific property to her children and the rest of her estate to DI, or if he predeceased her, to the children equally. It also included provisions for grandchildren to inherit their parent’s share if that parent had died before MA.

A later codicil changed the executor of MA’s estate to DI (or to the plaintiff if DI had predeceased her). But by late 2021, MA and DI, following second thoughts about their estate plans, wanted their estates to benefit their bloodline descendants and met with a succession planning lawyer to revise their Wills. Unfortunately, MA and DI contracted COVID-19 before signing any new Wills, and DI passed away before they could finalise changes.

Capacity

By September 2022, the lawyer had serious concerns about MA’s cognitive health after meeting with her, believing that MA no longer had testamentary capacity. MA resides in an aged care facility and a medical report from psychiatrist Dr Nick De Felice provided uncontroverted evidence that MA has dementia of moderate to marked severity and cannot understand or execute a valid Will. The court accepted this expert opinion and found MA to be without testamentary capacity.

The Proposed Statutory Will

The plaintiff applied to the court to approve a statutory Will to honour MA’s previously expressed wishes. The proposed Will includes:

  • Two charitable gifts of $500 each;
  • Dividing the remainder of the estate into three discretionary testamentary trusts—one for each of the plaintiff, LI, and TE, and their respective descendants;
  • Appointing the plaintiff as executor, with her son as a substitute if needed.

The Lawyer’s evidence supports this structure with the charitable gifts reflecting MA’s earlier wishes. The trust-based distribution aligns with MA’s desire to protect her estate for blood relatives while addressing known financial vulnerabilities within the family

The court began by confirming that MA is alive and over 18 years of age—basic threshold requirements that grant the court jurisdiction under s 40 of the Wills Act 1970 (WA) to authorise a statutory Will.

MA Could Have made the Proposed Will

The court found the terms of the proposed Will to be entirely lawful and of a kind MA could have made while still capable. The structure—incorporating small charitable gifts and testamentary trusts for her children and grandchildren—is a standard estate planning approach consistent with MA’s previously expressed wishes, particularly her desire to benefit only bloodline descendants and support family members with financial vulnerabilities.

Appropriate Applicant

The plaintiff, MA’s daughter and enduring guardian, was found suitable to bring the application. She is also the named executor in MA’s 2011 will.

Interested Parties Consent

Although formal notice of the application after serving MA is not required, the evidence showed that her sons, LI and TE, were aware of the proceedings and expressly consented to the proposed statutory Will.

Statutory Requirements

The court was satisfied that the plaintiff met all evidentiary requirements under s41 of the Wills Act, including:

  • A clear rationale for the application;
  • Evidence of MA’s assets, valued at over $5 million following her husband’s death;
  • A draft of the proposed will;
  • Details of MA’s past wishes, including gifts to two charities (UNICEF and the Asylum Seeker Resource Centre);
  • Confirmation that MA is unlikely to regain capacity;
  • A comparison with MA’s 2011 will, which also left her estate equally to her children;
  • Evidence that no other persons had a reasonable expectation of receiving a share of the estate;
  • no anticipation of claims under the Family Provision Act 1972 (WA).

The court ultimately approved the proposed statutory Will for three key reasons:

  1. This reflects MA’s intentions with her lawyer before she lost capacity.
  2. It closely aligns with the structure of her 2011 will, with minor but meaningful changes (such as discretionary trusts and small charitable bequests).
  3. All affected family members support the new arrangements.

Accordingly, the court ordered the revocation of the 2011 Will and codicil and made a new statutory will in the proposed terms.

Court Approval & the Proposed Statutory Will?

Jurisdiction

The court confirmed at the outset that it had jurisdiction to consider the application. MA is over 18 and alive, satisfying the fundamental prerequisites. A medical report by Dr Nick De Felice, a consultant psychiatrist, established that MA suffers from moderate to marked dementia and no longer has testamentary capacity. The court accepted this diagnosis, finding that MA could not make a valid will and was unlikely to regain capacity.

Proposed Will – suitability

A key question in such applications is whether the proposed will reflects what the person would have done had they retained capacity. The court was satisfied that the draft would align with instructions MA gave her lawyer, Ms Bruce, in late 2021 and early 2022. It also follows a rational and broadly conventional distribution model: the bulk of the estate is left to her three children, as it was under the 2011 Will, with two modest charitable bequests added.

Notably, the proposed Will directed the children’s inheritances to be placed in testamentary discretionary trusts, reflecting MA’s concerns about certain family members’ financial management skills and wish to preserve wealth across generations—issues she had previously discussed with the lawyer.

Hill J found the plaintiff (MA’s enduring guardian and the executor named in the 2011 Will) suitable to bring the application. Notice requirements were satisfied: MA was served, and MA’s other children (LI and TE) were informed and gave their consent. No other parties were identified as having a legitimate interest.

Courts decision

The court concluded that the proposed will was appropriate. It mirrored MA’s known intentions, preserved the substance of her previous estate planning, and provided sensible mechanisms for wealth management. Importantly, the beneficiaries under the prior will consent to the changes.

As a result, the court made orders revoking the 2011 Will and codicil and authorising the creation of the statutory will as proposed.

This decision illustrates the courts’ careful, evidence-based approach to statutory will applications. While the bar is high, where there is clear evidence of the testator’s wishes and a well-drafted will accords with those wishes, the court will not hesitate to approve the application in the interests of justice and testamentary fairness.

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