What Is a Statutory Will and Who Can Apply for One in NSW?

Why Statutory Wills Exist in NSW

Making a valid will requires testamentary capacity, meaning a sound mind, memory, and understanding at the time the will is made. When that capacity is lost through dementia, acquired brain injury, stroke, or lifelong cognitive disability, the person can no longer make or change a valid will.

The consequences matter. An existing will may be outdated, failing to account for changed circumstances or deceased beneficiaries. If no valid will exists at all, the estate passes under the intestacy rules in Chapter 4 of the Succession Act 2006 (NSW), distributing assets in a fixed legal order. This is why expert estate planning while capacity exists remains the strongest protection.

Under Part 2.2 Division 2 of the Succession Act 2006 (NSW), the Supreme Court can approve a will reflecting what the incapacitated person would likely have made.

What Can a Statutory Will Do?

Under section 18 of the Succession Act 2006 (NSW), the Court may authorise:

• The making of a new will for a person who lacks capacity and has never made a valid will, or whose circumstances have changed significantly since their last will
• The alteration of an existing will to reflect changed circumstances, such as the death of a named beneficiary or executor
• The revocation of an existing will or part of a will where revocation is consistent with what the person would have decided

One critical limitation: the Court cannot make a statutory will order after the person has died. Section 18(3) is clear that the person must be alive when the order is made. Timing matters. If capacity is deteriorating, the application must be made while there is still time.

The Three Categories of Statutory Will Cases

The landmark NSW case Re Fenwick; Application of JR Fenwick and Re Charles [2009] NSWSC 530 established a framework that courts continue to apply. Palmer J identified three categories:

Lost Capacity Cases

These are the most common. The person is an adult who had testamentary capacity but has since lost it due to dementia, Alzheimer’s disease, or acquired brain injury. Their existing will may be outdated or may not reflect their current intentions. Any prior valid will can be used by the Court as a guide to the person’s likely testamentary intentions.

Nil Capacity Cases

These involve a person who has never had testamentary capacity due to a severe intellectual disability or early-life brain injury. Applications often arise where the person holds significant assets, such as a personal injury compensation award, and the intestacy rules would benefit family members who played little role in their care.

Pre-Empted Capacity Cases

These typically involve a minor old enough to have formed relationships and expressed property wishes, but who lacks capacity due to age and is unlikely to live long enough to acquire it, such as following a terminal diagnosis.

Who Can Apply for a Statutory Will in NSW?

Under section 18(1), any person may apply. The Court assesses whether the applicant is an appropriate person to bring the application. In practice, successful applicants have included:

• Family members, most commonly a spouse, adult child, or sibling who is the primary carer
• A person holding an enduring power of attorney for the incapacitated person
• A guardian or financial manager appointed by NCAT’s Guardianship Division
• A solicitor who has acted for the incapacitated person in related matters
• The NSW Trustee and Guardian, where the State manages the person’s financial affairs

The applicant must first obtain leave of the Court. This two-stage process is set out under sections 19, 20, and 22 of the Succession Act 2006 (NSW).

The Two-Stage Application Process

Every statutory will application follows a two-stage structure: leave from the Court, then the substantive hearing. In uncontested matters both stages are often dealt with together.

Stage 1: Applying for Leave

The applicant must first seek leave from the Supreme Court of NSW. Under section 22 of the Succession Act 2006 (NSW), the Court must refuse leave unless satisfied that:

• There is reason to believe the person is, or is reasonably likely to be, incapable of making a will
• The proposed will, alteration, or revocation is, or is reasonably likely to be, one the person would have made if they had testamentary capacity
• It is or may be appropriate for the Court to make the order
• The applicant for leave is an appropriate person to make the application
• Adequate steps have been taken to allow representation of persons with a legitimate interest in the application, including anyone who might reasonably expect to benefit from the estate

Under section 19, the applicant must support the leave application with a draft proposed will, a reasonable estimate of the estate, evidence of the person’s lack of capacity, any evidence of their prior wishes and intentions, and details of those likely to benefit or be excluded.

Stage 2: The Substantive Hearing

In practice, both stages are often heard together, particularly where the evidence is clear and the application uncontested. At the substantive hearing under section 21 of the Succession Act 2006 (NSW), the Court determines whether it is satisfied of the matters set out in section 22. If satisfied, the Court makes the order under section 18. The will is then executed in accordance with section 23, signed by an authorised person, typically the Registrar of the Supreme Court, and sealed with the seal of the Court. The signed document then becomes the person’s valid will for all purposes.

What Evidence Does the Court Rely On?

The Court’s central question is: what will would this person have made if they had testamentary capacity? To answer it, the Court draws on several categories of evidence.

• Prior testamentary intentions carry significant weight. This includes any prior valid wills, written notes or letters about the person’s wishes, and statements made to family members, friends, or solicitors before capacity was lost.
• Medical evidence establishes the nature and extent of the incapacity and whether the person is likely to regain capacity. Independent expert opinion from a geriatrician or psychiatrist is generally preferred over evidence from treating practitioners alone.
• Relationship evidence from carers and family members helps the Court understand the person’s close relationships and what those relationships would likely have meant for their testamentary choices.

The Court will not authorise a statutory will simply because the proposed terms seem fair. The test under section 22(b) is whether the proposed will reflects what the person would likely have chosen. 

As the Court observed in Re Will of Jane [2011] NSWSC 624, this is a serious jurisdiction, and the Court does not readily substitute its own judgment for that of the incapacitated person.

Can a Statutory Will Be Challenged?

Yes. A statutory will is a valid will once made. After the person dies, it goes through probate as usual. It can be challenged on the same grounds as any other will, including lack of knowledge and approval, suspicious circumstances, or undue influence in the context of the evidence placed before the Court.

It can also be contested by eligible persons under Chapter 3 of the Succession Act 2006 (NSW) by way of a family provision claim.

More: What is Testamentary Capacity?

When Should You Seek Legal Advice?

If someone you care for no longer has capacity to make or update their will, act promptly. The longer the delay, the more their condition may progress, reducing the available evidence about their likely intentions.

There is no statutory time limit for a statutory will application, but the person must be alive when the order is made. Early advice helps you understand whether the application is appropriate, what evidence is needed, and whether an existing will gives the Court a sufficient guide to the person’s intentions.

More: Dying Without a Will in NSW (Dying Intestate)

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Speak With a Wills and Estate Lawyer

Statutory will applications turn on detailed evidence and careful drafting. If you are caring for someone who can no longer make or update their will, call 1300 414 844 for a confidential, obligation-free consultation. Empower Wills and Estate Lawyers offers sliding fee scales, payment plans, pensioner discounts, and no-win, no-fee arrangements in eligible cases. Disbursements and barrister’s fees remain payable regardless of outcome.