WILLS ACT 1936 - SECT 7
WILLS ACT 1936 - SECT 7
7—Will of person lacking testamentary capacity pursuant to permission of
court
(1) The Court may, on
application by any person made with the permission of the Court, make an order
authorising the making or alteration of a will in specific terms approved by
the Court, or the revocation of a will, on behalf of a person who lacks
testamentary capacity.
(2) An authorisation
under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an
order under this section, the Court must be satisfied that—
(a) the
person lacks testamentary capacity; and
(b) the
proposed will, alteration or revocation would accurately reflect the likely
intentions of the person if he or she had testamentary capacity; and
(c) it
is reasonable in all the circumstances that the order should be made.
(4) In considering an
application for an order under this section, the Court must take into account
the following matters:
(a) any
evidence relating to the wishes of the person;
(b) the
likelihood of the person acquiring or regaining testamentary capacity;
(c) the
terms of any will previously made by the person;
(d) the
interests of—
(i)
the beneficiaries under any will previously made by the
person;
(ii)
any person who would be entitled to receive any part of
the estate of the person if the person were to die intestate;
(iii)
any person who would be entitled to claim the benefit of
the Inheritance (Family Provision) Act 1972 in relation to the estate of
the person if the person were to die;
(iv)
any other person who has cared for or provided emotional
support to the person;
(e) any
gift for a charitable or other purpose the person might reasonably be expected
to give by a will;
(f) the
likely size of the estate;
(g) any
other matter that the Court considers to be relevant.
(5) An order may be
made under this section in relation to a minor.
(6) The Court is not
bound by rules of evidence in proceedings under this section.
(7) The following
persons are entitled to appear and be heard at proceedings under this section:
(a) the
person in relation to whom the order is proposed to be made;
(b) a
legal practitioner representing the person or, with the permission of
the Court, some other person representing the person;
(c) the
person holding or acting in the office of Public Advocate under the
Guardianship and Administration Act 1993 ;
(d) the
person's administrator, if one has been appointed under the
Guardianship and Administration Act 1993 ;
(e) the
person's guardian, if one has been appointed under the
Guardianship and Administration Act 1993 ;
(f) the
person's manager, if one has been appointed under the Aged and Infirm
Persons' Property Act 1940 ;
(g) the
person's attorney, if one has been appointed under an enduring power of
attorney;
(h) any
other person who has, in the opinion of the Court, a proper interest in the
matter.
(8) In determining an
application under this section, the Court may make such incidental orders
relating to costs or other matters as it thinks fit.
(9) A will or
instrument altering or revoking a will made pursuant to an order under this
section must be executed as follows:
(a) it
must be signed by the Registrar; and
(b) it
must be sealed with the seal of the Court.
(10) The will or
instrument altering or revoking a will must be retained by the Registrar and
will be taken to have been deposited with the Registrar under section 13 of
the Administration and Probate Act 1919 .
(11) The will may not
be withdrawn from deposit with the Registrar by or on behalf of the person on
whose behalf it was made unless the Court has made an order under this section
authorising the revocation of the will (in which case the Registrar must
withdraw it on presentation of a copy of the order) or the person has acquired
or regained testamentary capacity.
(12) In this
section—
"testamentary capacity" means the capacity to make a will 1 .
Note—
1 The cause of incapacity to make a will may arise
from mental incapacity or from physical incapacity to communicate testamentary
intentions.