Statutory Will Applications: A Practical Guide

Tuesday, 01 April 2014
Tina Cockburn reviews Statutory Will Applications: A Practical Guide, which provides a timely and valuable contribution to Australian succession-law scholarship and will also be of great interest to comparative law scholars.

Although UK courts have, for many years, had power to make wills for those lacking testamentary capacity, this jurisdiction is relatively new in Australia, having been granted by legislation enacted between 1996 and 2010. Given increasing numbers of statutory will applications in Australia since the legislative reform, and a growing body of law, the publication of this specialist work, Statutory Will Applications: A Practical Guide, provides a timely and valuable contribution to Australian succession-law scholarship and will also be of great interest to comparative law scholars.

The authors’ stated aim is to ‘provide a practical commentary that includes a consideration of the various circumstances in which a statutory will application may be appropriate, the steps involved in preparing an application, and approaches that can be taken when acting on behalf of interested persons’. They have more than delivered on this promise by also providing some synthesis and critique of this developing area of the law, though the work does not purport to be an academic treatise given the stated practical focus. As noted by the Honourable Justice Tom Gray in his foreword, this is a well researched work that will be invaluable for all wishing to master this new branch of succession law.

Chapter one, the introduction, traces the history of the jurisdiction from its English origins. The development of the Australian legislation is next considered, with helpful references to the law reform consultations and reports leading up to its enactment.

Chapter two, ‘The statutory framework’, contains a detailed overview of the legislation enacted across Australia, summarising key features in a helpful table of comparative provisions. The chapter then considers, in considerable detail, the distinguishing features of the various legislative schemes by reference to various substantive provisions (such as standing, the core test, threshold requirements, information to be provided by the applicants, etc) and procedural requirements.

Chapter three, ‘When a statutory will may be required’, will provide helpful insights for those wishing to understand the factual circumstances in which an application for a statutory will should be considered. The chapter helpfully classifies the cases by reference to three broad, overlapping categories: adjusting beneficial entitlements under an existing will or an intestacy; resolving problems with an existing will or intestacy; and estate planning. For example, personal injury practitioners would be prudent to note the references to cases such as Hoffman v Waters [2007] SASC 273, where a statutory will application was made to adjust beneficial entitlements under an existing intestacy and to facilitate estate planning by protecting a vulnerable beneficiary. In that case, a statutory will was made in favour of an unpaid carer (the mother), following the award of substantial damages in personal injury litigation arising out of catastrophic injuries suffered in a car accident during infancy.

For legal practitioners, chapters four (‘Acting for the applicant’), five (‘Acting for other interested persons’), six (‘Family provision’), seven (‘Costs’), ten (‘Precedents’) and 11 (‘Case studies’) will provide extremely useful practical guidance. Chapter eight, ‘Review of case law’, contains concise summaries of the facts and reasons for decision of the approximately 50 reported Australian statutory will cases decided at the date of publication, arranged according to jurisdiction, with helpful catchwords that will assist busy practitioners to locate relevant cases.

The book is well researched, easy to read and generally well structured and indexed. In particular, the ‘Catchword index’, which precedes the general index, will undoubtedly assist readers to quickly locate cases and commentary relevant to specific aspects of the statutory wills jurisdiction under consideration. In subsequent editions, the authors may wish to consider some slight restructuring. For example, extracts from legislation and procedural rules appear in chapter nine. This chapter may have more logically appeared as chapter two, following the introductory chapter, or been relocated to an appendix after the substantive chapters.

Overall, Statutory Will Applications: A Practical Guide provides a thoughtful and comprehensive account of a growing area of the law. It will be essential reading for not only general and specialist succession-law and estate-planning legal practitioners, but also other professional advisors practising in the area of estate planning, such as accountants, financial planners, academics and students of the law in this field. 

By Richard Williams TEP and Sam McCullough

LexisNexis Butterworths



Author block
Tina Cockburn

Tina Cockburn is Associate Professor, Queensland University of Technology, Faculty of Law, Brisbane, Australia.

The content displayed here is subject to our disclaimer. Read more