COVID-19 | Mak­ing a Will in times of emergency

COVID-19 has sig­nif­i­cant­ly changed the way we do ordi­nary tasks. With the increas­ing restric­tions on trav­el, leav­ing the home and gath­er­ings, tasks we used to do every­day with ease have become more dif­fi­cult. This is even more so when it comes to mak­ing your Will. 

Gen­er­al­ly speak­ing, a Will needs to be signed by the tes­ta­tor in the pres­ence of two adult wit­ness­es who are not named in the Will. As gath­er­ings of two or more peo­ple are banned, this makes exe­cut­ing a will seem impossible. 

Imag­ine the fol­low­ing scenario: 

1. pri­or to the out­break of COVID-19, you had instruct­ed your solic­i­tor to draft your Will;
2. you approve your draft will and have made an appoint­ment to see your solic­i­tor to exe­cute your Will;
3. after mak­ing the appoint­ment but before the appoint­ment date, the gov­ern­ment restricts trav­el and gath­er­ings of more than two peo­ple; and
4. before the gov­ern­ment restric­tions are lift­ed, you fall ter­mi­nal­ly ill and lose tes­ta­men­tary capacity.

While it is true that a per­son who lacks tes­ta­men­tary capac­i­ty can­not make a Will, this does not mean it is impos­si­ble for them to have a Will after they lose tes­ta­men­tary capacity. 

Sec­tion 18 of the Suc­ces­sion Act 2006 (NSW) (Act) empow­ers the Supreme Court (Court) to autho­rise a Will in terms approved by the Court to be made on behalf of a per­son who lacks tes­ta­men­tary capac­i­ty. This is known as a statu­to­ry will and can be used in sit­u­a­tions where a per­son was in the process of hav­ing their Will draft­ed and exe­cut­ed but los­es capac­i­ty before they can exe­cute the Will. 

Require­ments for a statu­to­ry will 

The require­ments of a statu­to­ry will are as follows: 

• the per­son in respect of whom the statu­to­ry Will is to be made (Tes­ta­tor) must be alive. That is, a statu­to­ry will can­not be made in respect of a deceased person;
• the Court must grant leave to a per­son mak­ing an appli­ca­tion for a statu­to­ry Will. Although a hear­ing for leave may be treat­ed as a hear­ing for an appli­ca­tion for a statu­to­ry Will;
• there is a rea­son to believe that the Tes­ta­tor is, or is rea­son­ably like­ly to be, inca­pable of mak­ing a Will;
• the pro­posed will is, or is rea­son­ably like­ly to be, one that would have been made by the Tes­ta­tor if they had tes­ta­men­tary capacity;
• that it would be appro­pri­ate for the Court to make an order autho­ris­ing a statu­to­ry Will;
• the appli­cant for leave is the appro­pri­ate per­son to make the appli­ca­tion; and
• ade­quate steps have been tak­en to allow rep­re­sen­ta­tion, as appro­pri­ate, of per­sons with a legit­i­mate inter­est in the appli­ca­tion, includ­ing those who would rea­son­ably expect to ben­e­fit from the Tes­ta­tor’s estate. This means that all poten­tial ben­e­fi­cia­ries should be noti­fied of the appli­ca­tion and the Tes­ta­tor should also be rep­re­sent­ed by a tutor.

Small v Phillips (No 2) [2019] NSW­CA 268

Small v Phillips (No 2) [2019] NSW­CA 268 illus­trates when a statu­to­ry Will may be made. 

Mil­lie Phillips (Mil­lie) is a wealthy woman who lost tes­ta­men­tary capac­i­ty after suf­fer­ing a stroke in April 2018. It was esti­mat­ed that her estate would be worth approx­i­mate­ly $90 mil­lion, though this was sub­ject to some uncertainty. 

Mil­lie’s grand­son brought the appli­ca­tion at first instance and on appeal. 

A brief his­to­ry is as follows:

• Mil­lie had made at least two Wills, one in 1972 and one in 2001;
• Mil­lie con­stant­ly act­ed as if she did not have a Will;
• from Novem­ber 2015 to April 2017, Mil­lie had a num­ber of con­ver­sa­tions with her usu­al solicitor;
• in 2017, Mil­lie con­sult­ed with var­i­ous advi­sors to pre­pare a new Will. This result­ed in a Draft Will (Draft Will);
• on numer­ous occa­sions, Mil­lie expressed that she did not agree with the con­tents of the Draft Will; and
• in Octo­ber 2017, Mil­lie instruct­ed her usu­al solic­i­tor to pre­pare her Will.

The Court of Appeal con­sid­ered the rea­son­able like­li­hood of Mil­lie mak­ing the Draft Will and the appro­pri­ate­ness cri­te­ria in particular. 

Regard­ing the rea­son­able like­li­hood of Mil­lie mak­ing the Draft Will, notwith­stand­ing her com­ments that she did not agree with its con­tents, the Court of Appeal found that the fol­low­ing actions of Mil­lie indi­cat­ed that there was a rea­son­able like­li­hood of her mak­ing a Will in the terms of the Draft Will:

• she intend­ed to move for­ward with hav­ing a will pro­duced to her satisfaction;
• her instruc­tions in Octo­ber 2017, were sub­stan­tial­ly sim­i­lar to the terms of the Draft Will;
• it was high­ly unlike­ly that she want­ed to die with­out a Will; and
• she took steps to finalise her Will (eg being exam­ined for tes­ta­men­tary capac­i­ty, ask­ing her grand­son for a list of paint­ings he would like, meet­ing with friends to dis­cuss estate planning).

The Court of Appeal also held that cer­tain­ty is not required when deter­min­ing whether a pro­posed Will is one that would have been made by the Tes­ta­tor. It is suf­fi­cient for the evi­dence to show that the Tes­ta­tor is ​‘rea­son­ably like­ly’ to have made the Will. This allows for a degree of lat­i­tude or mar­gin for judg­ment when con­sid­er­ing the inten­tions of the Testator.

Regard­ing appro­pri­ate­ness of the Draft Will, the Court of Appeal held that Mil­lie act­ed as if she had no Will and that the lack of clar­i­ty regard­ing the val­ue of her estate was not suf­fi­cient for con­clud­ing that the Draft Will was not appropriate. 

Con­clu­sion

Whilst it is rec­om­mend­ed to make a Will while you have tes­ta­men­tary capac­i­ty, unfore­seen cir­cum­stances may make this impos­si­ble and restric­tions imposed due to COVID-19 have made the for­mal exe­cu­tion of Wills more chal­leng­ing. How­ev­er, all is not lost when the Tes­ta­tor los­es tes­ta­men­tary capac­i­ty and their tes­ta­men­tary wish­es can still be effect­ed. By mak­ing an appli­ca­tion for a statu­to­ry Will, those close to the Tes­ta­tor can try to ensure that the Tes­ta­tor’s wish­es can be record­ed as much as pos­si­ble and car­ried out when they pass away.