Application for a Statutory Will for a Person Lacking Testamentary Capacity Since Birth, How are the 'Reasonably Likely' Intentions Determined?

Statutory Will for an Adult Who Never Had Testamentary Capacity: When Can the Supreme Court Authorise a Will as “Reasonably Likely” to Reflect the Person’s Intentions?

Based on the authentic Australian judicial case Re the Will of Elizabeth (a pseudonym) [2025] ACTSC 299, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Introduction

This case sits at the intersection of dignity, practical necessity, and a legal fiction the law must sometimes embrace: deciding what a person would have wanted, even when that person has never been able to express testamentary intentions in a legally recognisable way. The Supreme Court of the Australian Capital Territory was asked to authorise a statutory will for an adult Applicant who, because of profound disabilities acquired at birth, has never had testamentary capacity. The Court’s task was not to reward carers, nor to resolve a family feud. It was to apply a tightly structured statutory regime under the Wills Act 1968 (ACT), and to decide whether the proposed will was reasonably likely to be the will the Applicant would have made if capacity existed, and whether it was appropriate to make the order.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of the Australian Capital Territory
Presiding Judge: Muller AJ
Cause of Action: Statutory will application for a person without testamentary capacity under the Wills Act 1968 (ACT)
Hearing Date: 20 June 2025
Decision Date: 11 July 2025
Reasons Date: 15 July 2025
File Number: SC 79 of 2025

Core Keywords

Keyword 1: Authentic Judgment Case
Keyword 2: Statutory will
Keyword 3: Testamentary capacity
Keyword 4: “Reasonably likely” will
Keyword 5: Leave requirement and information requirements
Keyword 6: Representation of legitimate interests

Background

The Applicant is a young adult who has lived with severe physical and intellectual disabilities since birth. A medical negligence claim resolved years earlier created a substantial fund, with part used to build a purpose-built home and the remainder held in a managed trust. The Applicant cannot make a will. That creates a practical problem: if the Applicant dies intestate, the legal pathway for distributing assets may be workable at the first level, but it can become uncertain and administratively difficult if the expected family beneficiaries are not alive, if there are trust complications, or if the estate requires clarity for long-term management. The litigation guardian, who is also involved in administering the Applicant’s funds, sought the Court’s authorisation to have a statutory will made to provide a clear plan.

Core Disputes and Claims

This was not a conventional dispute between adversaries. The legal focus was the Court’s evaluative task under the statutory will scheme:

Whether there was reason to believe the Applicant was, or was reasonably likely to be, incapable of making a will.
Whether the proposed will was, or was reasonably likely to be, the will the Applicant would have made if the Applicant had testamentary capacity.
Whether it was appropriate to make the order.
Whether the applicant for leave was an appropriate person.
Whether adequate steps had been taken to allow representation of all people with a legitimate interest.

The relief sought was:

Leave to apply for a statutory will order; and
An order directing that a will be made in the proposed terms and executed by the Registrar pursuant to the Act.

Chapter 2: Origin of the Case

The story begins long before any court filing. The Applicant’s life is defined by permanent care needs arising from hypoxic brain damage at birth. The practical reality is constant: full-time care, complete dependence, and a family’s life reshaped around disability.

A medical negligence settlement in childhood created substantial assets. Those funds were partly applied to build a home adapted to the Applicant’s needs, and the remaining balance was retained in a trust structure managed by professional trustees. Over time, the trust fund grew to a level well in excess of AUD $6 million.

That financial security, however, comes with a hidden vulnerability: if the Applicant dies without a will, the “default plan” is the law of intestacy. Intestacy can appear straightforward, but it is a blunt tool. It does not always match family expectations about contingent beneficiaries. It does not easily solve questions about remote possibilities, substitute beneficiaries, cultural or charitable giving, and, critically in this case, how trust-held assets are practically dealt with on death.

Detail Reconstruction: Relationship, Daily Life, and Financial Interweaving

The Applicant’s primary caregivers since birth have been the Mother and the Sister. Their lives are intertwined with the Applicant’s daily needs in a way that is not captured by bank statements or legal categories. The home was constructed to accommodate the Applicant’s disability. Care is not episodic; it is continuous.

On the financial side, there is a managed trust fund supporting care, therapies, equipment, and living costs. The litigation guardian, in a role linked to the trust management, occupies a position of responsibility that is both practical and legal: safeguarding the Applicant’s property and ensuring decisions are made in the Applicant’s interests.

Conflict Foreshadowing: The Decisive Moment

There was no dramatic family rupture. The decisive moment was administrative and legal: the recognition that intestacy could create uncertainty, particularly if the first and second-tier family beneficiaries did not survive, and that the trust documentation before the Court did not necessarily provide a clear mechanism for the trust assets if the Applicant died. The application was, in essence, a preventative legal step—an attempt to replace default uncertainty with a Court-authorised plan.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

Medical evidence of lack of testamentary capacity: A general practitioner’s report expressed the opinion that the Applicant would never develop adult cognitive faculties necessary to understand the value of the estate, make a will, or differentiate between competing interests in estate planning, and described complete dependence and full-time care needs.
Estate and asset evidence: Material describing the size and character of the Applicant’s estate, including a significant trust fund and the history of settlement funds used to build a purpose-built home.
Proposed will document: A draft will setting out tiered beneficiaries and substitute executors, including professional trustees as executors in later contingencies.
Family context evidence: Evidence about caregiving roles, limited involvement of extended family in care, and the central role of the Mother and Sister in the Applicant’s life.
Cultural and charitable context: Evidence supporting that a contingent charitable gift to a religious institution overseas aligned with the family’s cultural and religious background, including the Applicant having visited the institution.

Respondent’s Main Evidence and Arguments

There was no adversarial Respondent in the ordinary sense. The Court nevertheless had to be satisfied that persons with a legitimate interest were properly represented and that the application was not pushing through an uncontested outcome without safeguards. The Court required assurance that the Sister consented to the proposed will, and additional affidavit material was sought and provided.

Core Dispute Points

Even without a courtroom opponent, the dispute points were legal and evidentiary:

Proof of permanent incapacity: not merely present incapacity, but the enduring inability to ever make a will.
The “reasonably likely” test: how to assess testamentary intention when the Applicant never had capacity and cannot have expressed legally reliable intentions.
Appropriateness and necessity: whether a statutory will was justified when intestacy might otherwise distribute assets to the same immediate family members, and whether additional contingencies created a real benefit.
Process integrity: whether the litigation guardian was an appropriate applicant, and whether adequate steps were taken to represent legitimate interests.

Chapter 4: Statements in Affidavits

Affidavit evidence did the heavy lifting in this case. It functioned as both narrative and proof: telling the Court what the Applicant’s life looks like, how funds are held and managed, why a will is practically needed, and how the proposed distribution fits within a reasonable framework.

Comparative Affidavit Framing: Where Truth Meets Strategy

In a typical adversarial matter, competing affidavits often describe the same event in different tones: one affidavit emphasises sacrifice, the other minimises it; one highlights dependence, the other reframes it as independence. Here, the contrast was not between two warring parties, but between what the statute demands and what lived reality provides.

The affidavits had to bridge an unusual evidentiary gap: there could be no affidavit from the Applicant expressing wishes. Instead, the affidavits had to supply:

objective evidence of incapacity;
a careful map of the estate;
a plausible testamentary pattern consistent with intestacy at the first level, but adding rational contingency planning; and
evidence that relevant family members consented and that no hidden cohort of legitimate interests was ignored.

Strategic Intent Behind Procedural Directions

The Court’s request for an affidavit confirming the Sister’s consent was not mere formality. It was a procedural safeguard aligned with the statutory requirement that adequate steps be taken to allow representation of those with a legitimate interest. In uncontested statutory will applications, the Court must actively protect the integrity of the process, because the incapacitated person cannot speak, cannot object, and cannot test the evidence.

Chapter 5: Court Orders

Before final orders were made, the Court took steps to ensure the evidentiary record was complete and the application was procedurally sound. The Court:

required additional affidavit evidence from the Sister confirming consent to the proposed will; and
proceeded on the basis of comprehensive affidavit material and written submissions, rather than a fact-heavy contested hearing.

These directions reflect a central feature of statutory will jurisdiction: the Court is not a passive umpire. It performs a supervisory role, ensuring the statutory threshold is met and the interests of the person without capacity are protected.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The “showdown” in this proceeding was not a theatrical cross-examination. It was a disciplined legal audit: the Court testing whether the statutory tests were met, and whether the evidence justified the Court stepping into the most personal legal act a person can make—deciding how property should pass on death.

Process Reconstruction: What Happened in Court

The matter was heard on 20 June 2025. The Court considered the affidavits and written submissions, and then required further confirmation by affidavit from the Sister. That request underscores the Court’s focus on representation of legitimate interests. The additional affidavit was later received, and orders were made in chambers.

Core Evidence Confrontation: Where the Case Was Won or Lost

The decisive confrontation was between:

the medical evidence establishing permanent inability to make a will; and
the statutory requirement that the proposed will be reasonably likely to be what the Applicant would have made if capacity existed.

The case turned on whether the Court could be satisfied, objectively, that a will benefiting the Mother first, then the Sister, then later-tier substitutes, was an appropriate reflection of what a reasonable person in the Applicant’s position would likely do.

Judicial Reasoning with Original Quotation

The Court approached the “reasonably likely” inquiry with explicit acknowledgement that the task is artificial where the person has never had capacity. The Court adopted an objective lens, grounded in authority.

“As Palmer J observed in Re Fenwick there is a considerable element of artificiality in addressing this question in a case where the person concerned has always lacked capacity since birth and in respect of whom it is impossible to glean any sense of what their testamentary intentions may have been. In these circumstances Palmer J described the question as one to be addressed objectively.”

This passage was determinative because it framed the correct method: the Court was not searching for direct proof of personal wishes, but evaluating—based on evidence of relationships, care, dependence, and social reality—whether the proposed will had a fairly good chance of matching what the Applicant would have done with capacity.

The Court also used authority to explain that “reasonably likely” is not the same as certainty. It permits a margin for judgment. That is crucial in cases like this, because the evidence cannot reach the level of a draft will left unsigned, or clear expressed intentions.

Chapter 7: Final Judgment of the Court

The Court granted leave and authorised the making of the statutory will.

Orders

Pursuant to s 16C of the Wills Act 1968 (ACT), leave was granted to apply for an order under s 16A.
Pursuant to s 16A of the Wills Act 1968 (ACT), the making of a will in the form proposed (annexed to affidavit material) was authorised.
Pursuant to s 16F of the Wills Act 1968 (ACT), the Registrar was directed to sign and seal the will.

In practical terms, the Court authorised a tiered will structure:

Primary beneficiary and executor: the Mother (if surviving by 30 days).
Secondary beneficiary and executor: the Sister (if the Mother did not so survive).
If needed: professional trustees as executors with a gift over to the Sister’s issue upon attaining 21.
Ultimate contingencies: a one-fifth gift to the Sister’s Husband, and the residue to a religious charitable purpose aligned with the family’s cultural and religious background.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case demonstrates a disciplined solution to a problem the law cannot perfectly solve. A will is ordinarily the private voice of an individual. Here, the Applicant could never speak in that way. The Court’s role was to construct, through statute, a legally defensible proxy for intention.

The jurisprudential value lies in how the Court applied the statutory scheme to a “never had capacity” adult, and how it treated the “reasonably likely” threshold as a flexible, evidence-based judgment, not a guess. The Court anchored the inquiry in objective relationship evidence: the caregiving reality, the absence of other close family involvement, the size and structure of the estate, and the practical certainty benefits of a will compared with intestacy.

Judgment Points

The statutory will jurisdiction is a safeguard, not a convenience
The Court did not treat the application as automatic. It demanded complete statutory information and required additional affidavit material to ensure representation of legitimate interests.
“Reasonably likely” is a calibrated threshold designed for uncertainty
The Court affirmed that the law does not require proof of the exact will the person would have made. The threshold allows a margin for judgment, while still demanding a rational, evidence-supported outcome.
Objective assessment is essential where capacity never existed
The Court accepted that seeking subjective intention is artificial in such cases, and therefore reasoned from objective family circumstances.
Following intestacy at first level supports plausibility, but does not remove the need for a will
The Court treated the alignment with intestacy as a “comfort” but still examined necessity, particularly in the failure of earlier-tier gifts and the need for contingency planning.
Appropriateness includes practical estate management and trust certainty
A key driver was administrative certainty: clarity about who should receive assets and who should manage them, especially when trust documents may not address death contingencies with precision.
An appropriate applicant is often the person who can act independently of the beneficiaries
The litigation guardian’s role as trustee, without personal benefit, supported appropriateness and reduced the risk of self-interested estate engineering.
Representation of legitimate interests is not optional, even in a family-supported application
Consent evidence from the Mother and Sister was treated as important, consistent with the statutory requirement to enable representation of all legitimate interests.
Cultural and religious context can legitimately inform contingency charitable gifts
The Court accepted that the family’s cultural and religious background, and the Applicant’s connection to the relevant institution, supported the appropriateness of the contingent charitable gift.

Legal Basis

The legal foundation was the Wills Act 1968 (ACT) statutory will regime:

Section 16A: empowers the Court to authorise making a will for a person without testamentary capacity.
Section 16B: sets information requirements supporting the leave application, including evidence of incapacity, estate details, draft will, potential intestacy claimants, and family provision likelihood.
Section 16C: requires leave to apply.
Section 16D: governs hearing approach, including that the Court is not bound by the rules of evidence and may inform itself as it sees fit.
Section 16E: sets mandatory satisfaction matters, including incapacity, “reasonably likely” will, appropriateness, appropriate applicant, and adequate representation steps.
Section 16F: enables Registrar execution.

Comparable authorities supporting the reasoning framework included:

Fenwick Re; Application of JR Fenwick & Re Charles [2009] NSWSC 530; 76 NSWLR 22
Small v Phillips (No 2) [2019] NSWCA 268; 18 ASTLR 608
Re DH: application by JE and SM [2011] ACTSC 69
Re the Will of Clara (a pseudonym) [2023] ACTSC 86

Evidence Chain

Victory Point 1: Permanent incapacity established by medical opinion
– Evidence: a clear medical report describing inability to develop adult cognitive faculties necessary for understanding an estate and making a will.
– Legal consequence: satisfied the incapacity limb and supported refusal of any suggestion the Applicant might later regain capacity.

Victory Point 2: Estate size and structure demanded clarity
– Evidence: a substantial trust fund well in excess of AUD $6 million and a property arrangement involving a purpose-built home.
– Legal consequence: strengthened the appropriateness of making an order because a large, complex estate increases the practical risk of intestacy complications.

Victory Point 3: Caregiving reality as objective proxy for likely testamentary benefit
– Evidence: the Mother and Sister provided primary care since birth; extended family not materially involved in care.
– Legal consequence: supported that it was reasonably likely the Applicant would benefit those persons.

Victory Point 4: Tiered will structure addressed foreseeable contingencies
– Evidence: draft will with a survivorship period, substitute executors, and cascading beneficiaries.
– Legal consequence: appropriateness enhanced because the will provided an orderly plan beyond first-tier intestacy outcomes.

Victory Point 5: Representation safeguarded by consent evidence
– Evidence: affidavit confirmation of the Sister’s consent and knowledge of the application; awareness and consent from core family members with legitimate interest.
– Legal consequence: satisfied the representation limb and protected process integrity.

Victory Point 6: Applicant for leave was structurally independent of personal gain
– Evidence: litigation guardian was also a trustee manager, did not benefit personally from the will, and was positioned to understand trust management risks.
– Legal consequence: supported “appropriate person” requirement.

Victory Point 7: Contingent gifts justified by relational and cultural evidence
– Evidence: family’s cultural and religious connection to the charitable purpose; Applicant’s visits; and reasonableness of providing for the Sister’s Husband as a later-tier beneficiary.
– Legal consequence: supported appropriateness when earlier-tier gifts fail, avoiding the bluntness of intestacy in remote contingencies.

Victory Point 8: Court’s supervisory approach ensured statutory compliance, not rubber-stamping
– Evidence: Court required further affidavit material and assessed satisfaction of s 16B and s 16E.
– Legal consequence: demonstrated judicial discipline, reinforcing legitimacy of the statutory will order.

Judicial Original Quotation

The Court’s reasoning crystallised around two central propositions: objective assessment in “never had capacity” cases, and the latitude built into “reasonably likely”.

“The use of the phrase ‘reasonably likely’ imports some flexibility into the process of assessing what may have been the intentions of the incapable person.”

This statement mattered because it explains why statutory will cases do not demand impossible proof. The Court must still be persuaded, but the law recognises that a margin for judgment is inevitable.

“I am satisfied that the proposed will is one that is reasonably likely to have been made by [the Applicant] if [the Applicant] had testamentary capacity.”

This conclusion mattered because it tied the evidentiary narrative to the statutory threshold. It reflects the Court’s final synthesis: relationship evidence, estate structure, and practical certainty together met the statutory test.

Analysis of the Losing Party’s Failure

There was no traditional losing party. However, statutory will applications can fail when the evidentiary architecture is weak or the process does not protect legitimate interests. If this application had failed, it would likely have been for one or more of the following reasons:

Inadequate medical proof: if incapacity was asserted without credible medical evidence, or if evidence suggested capacity might be regained, the Court would have been required to refuse leave.
Speculative testamentary pattern: if the proposed will departed from a plausible objective model, such as excluding primary carers without explanation or creating unusual gifts without supporting context, “reasonably likely” would not be established.
Opaque estate evidence: if the size and character of the estate were uncertain, or trust structures were not explained, the Court could not responsibly approve a will plan.
Representation gaps: if persons with a legitimate interest were not notified, or if obvious potential claimants were ignored, the statutory requirement of adequate representation steps would not be satisfied.
Applicant conflict of interest: if the applicant for leave stood to benefit directly without independence safeguards, appropriateness and applicant suitability could fail.
No demonstrated benefit over intestacy: if the will did nothing more than replicate intestacy without addressing genuine administrative uncertainty, the Court might question whether the order was appropriate.

Implications

Certainty is a form of protection
A will is not only about generosity. It is about certainty. When a person cannot speak for themselves, certainty reduces the risk that others will have to fight later, spend money on avoidable litigation, or navigate administrative confusion during grief.
Care is not automatically rewarded by law, but it is powerfully persuasive evidence
The law does not treat caregiving as an automatic entitlement to inherit. Yet, when the Court must objectively infer what is “reasonably likely”, a lifetime of care becomes a compelling fact that shapes the legal outcome.
Good evidence is kindness to the Court and to the vulnerable person
The best statutory will applications are not emotional pleas. They are careful dossiers: medical clarity, estate clarity, draft will clarity, and fairness safeguards. The discipline of the evidence is part of how the vulnerable person is protected.
Culture and faith can matter, but only when anchored in evidence
Charitable gifts are not suspicious merely because they are overseas or faith-based. What matters is whether the gift makes sense in the person’s world, and whether the evidence supports that connection.
Procedural integrity is the quiet hero of protective jurisdictions
When there is no opposing party, the Court’s insistence on representation and proper material is not bureaucracy. It is justice performed in a different register: quietly, carefully, and with the vulnerable person at the centre.

Q&A Session

Q1: If intestacy would likely benefit the Mother and Sister anyway, why did the Court think a statutory will was still appropriate?

Because the statutory will provided greater certainty, particularly if the primary gifts failed. Intestacy can leave unresolved problems in later contingencies, and it may not neatly address executor appointments, substitute beneficiaries, or how a trust-held estate is managed on death. The will created a clear cascade plan and reduced administrative uncertainty.

Q2: How can a Court decide what a person would have wanted if that person never had capacity?

The Court does not pretend it can read private wishes. Instead, the Court uses an objective framework grounded in authority. It examines the totality of the evidence about relationships, dependence, caregiving, and what a reasonable person in that position would likely do, applying the “reasonably likely” threshold which allows a margin for judgment.

Q3: What are the biggest risks that can derail a statutory will application?

Common risks include inadequate medical evidence, an implausible or self-serving draft will, missing estate information, failure to notify or consider persons with a legitimate interest, and an applicant who lacks independence. Even in family-supported applications, the Court expects procedural safeguards and high-quality material.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Wills and Estates – Statutory Will Application for Adult Without Testamentary Capacity

Judgment Nature Definition

Final Judgment (authorisation granted and Registrar directed to execute the statutory will)

2. Self-examination of Core Statutory Elements

Core Test Standards for Statutory Will Orders

The following checklist reflects the statutory architecture typically applied in statutory will jurisdictions and is designed as a practical self-audit. Outcomes are fact-dependent and tend to be determined by the quality and completeness of evidence.

Step 1: Identify the statutory source of power and threshold

Confirm the Court has jurisdiction under the relevant Act to authorise a will for a person without testamentary capacity.
Confirm whether leave is required before the substantive application can be made.

Step 2: Establish incapacity with satisfactory evidence

Obtain medical evidence that addresses the person’s ability to understand:
- the nature and effect of a will;
- the nature and extent of the person’s property; and
- the claims of those who might reasonably expect benefit.
Where incapacity is enduring, evidence should address whether the person is reasonably likely to acquire or regain testamentary capacity.

Step 3: Provide a reasonable estimate of the size and character of the estate

Identify the estate components: real property, bank accounts, investments, superannuation death benefits (where relevant), trust interests, and structured settlement arrangements.
Explain control and ownership: whether assets are held personally, in trust, or subject to management arrangements.
Provide documentary support where practicable.

Step 4: Draft the proposed will with operational clarity

Appoint executors and substitute executors, considering practical capability.
Specify beneficiaries with a clear tiered structure.
Include contingency planning if primary beneficiaries do not survive.
Address survivorship periods and age contingencies if relevant.

Step 5: Address evidence of wishes and intentions

Where the person has expressed wishes (verbally, in writing, consistent patterns of giving, enduring preferences), provide that evidence.
Where the person never had capacity, present objective evidence of relationships, care patterns, dependence, and familial structure, as the Court may need to infer likely intentions from these facts.

Step 6: Identify intestacy position and potential claimants

Identify who would be entitled on intestacy if there were no will.
Identify any person who might have reason to expect a gift, even if not an intestacy beneficiary, based on relationship reality.
Consider whether any person may be eligible to bring a family provision claim, and provide evidence relevant to that likelihood.

Step 7: Prove appropriateness of making the order

Explain why a statutory will is needed or beneficial, including:
- certainty and administrative efficiency;
- protection against complex contingencies;
- trust management clarity;
- reduction of future dispute risk.
Address whether the proposed will aligns with a plausible, objectively reasonable plan, including whether it mirrors intestacy at the first level or deliberately departs from it for supported reasons.

Step 8: Establish the applicant is an appropriate person

Explain the applicant’s relationship to the person and the estate.
Address conflicts of interest.
Where the applicant is an independent trustee or litigation guardian without personal benefit, that tends to strengthen appropriateness.

Step 9: Demonstrate adequate steps for representation of legitimate interests

Identify and notify persons with a legitimate interest, including likely beneficiaries and potential claimants.
Provide consent evidence where appropriate.
Where representation is limited, explain why and how the Court can be satisfied that no legitimate interests are being sidelined.

3. Equitable Remedies and Alternative Claims

Statutory will applications exist because ordinary private ordering cannot operate without capacity. However, when statutory avenues are constrained, or where disputes later arise, parties sometimes consider alternative legal pathways. The feasibility of each pathway tends to be determined by factual nuance and jurisdictional limits.

Unjust Enrichment and Constructive Trust Considerations

In estates involving trusts or caregiving arrangements, parties sometimes explore constructive trust or restitutionary relief, particularly where one person has conferred a substantial benefit at their expense.

Was a benefit conferred, such as unpaid labour, financial contributions, or property improvements?
Was the benefit accepted or retained by another?
Would it be against conscience for the recipient to retain that benefit without compensation?
Is there a clear causal link between contributions and the asset claimed?

Where supported by evidence, a Court may consider remedies such as equitable compensation, account of profits, or a declaration of beneficial interest. These are highly fact-sensitive and do not replace a statutory will order, but may become relevant if later disputes emerge about ownership, contributions, or trust-held assets.

Estoppel Pathways in Family and Care Contexts

Promissory or proprietary estoppel may be explored where a person relied on a clear promise about future inheritance or property benefit.

Was there a clear and unequivocal promise or representation about inheritance or property?
Did the claimant act in reliance in a way that was reasonably foreseeable?
Was there detriment, such as giving up employment, relocating, or providing long-term unpaid care?
Would it be unconscionable for the promisor or estate to depart from the promise?

Estoppel tends to be difficult without clear representations, but it can be relevant in care-heavy family contexts, particularly where reliance and detriment are well documented.

Procedural Integrity as a Protective Principle

If there are later challenges to a statutory will process, the most likely battleground is procedural integrity: whether legitimate interests were represented, whether material was complete, and whether any conflict was managed transparently. A robust application record tends to reduce the risk of later collateral attacks.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Demonstrated lack of testamentary capacity at the time of application.
Compliance with statutory leave and information requirements.
A draft will that is operationally coherent.
Evidence supporting that the proposed will is reasonably likely to be what the person would have made with capacity.
Evidence that adequate steps were taken to allow representation of legitimate interests.

Exceptional Channels

Where the person has never had capacity, the “reasonably likely” inquiry may be approached objectively, using relationship and care evidence rather than direct wishes.
Where trust structures create administrative uncertainty on death, the practical need for certainty may weigh strongly in favour of appropriateness.
Where cultural or charitable giving is proposed, evidence of connection and context can support appropriateness, even if the gift does not mirror intestacy.

Suggestion

Do not abandon a protective application solely because direct evidence of wishes is absent. In “never had capacity” matters, Courts may accept objective evidence as the best available proxy, provided the overall plan is fair, rational, and procedurally safeguarded.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or debates involving:

the application of “reasonably likely” in statutory will applications where the person never had testamentary capacity;
the Court’s objective approach to inferring likely testamentary intention from caregiving and relationship evidence;
the role of certainty, trust administration, and contingency planning in the “appropriateness” analysis; and
procedural safeguards around representation of legitimate interests in uncontested protective applications.

Citation Method

As Positive Support: Where your matter involves a person with enduring incapacity and a proposed will that follows a rational, relationship-based plan, citing this authority can strengthen an argument that objective inference is permissible and that certainty-based appropriateness is a legitimate consideration.
As a Distinguishing Reference: If an opposing party cites this case, you should emphasise factual differences such as the presence of competing family factions, the absence of long-term caregiving evidence, significant departures from intestacy without cultural or relational justification, or incomplete representation steps, to argue that the precedent does not align with the present facts.

Anonymisation Rule

Do not use real names of private individuals. Use procedural titles consistent with the jurisdiction and the judgment style, such as Applicant, Litigation Guardian, and descriptions like Mother, Sister, and other relationship identifiers.

Conclusion

This case shows how Australian courts can lawfully and carefully create certainty for a person who cannot create certainty for themselves. The statutory will jurisdiction is not a shortcut; it is a protective mechanism that demands disciplined evidence and procedural integrity. When the evidence is coherent and the proposed will is objectively plausible, the law can provide a substitute for intention that is humane, practical, and legally defensible.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of the Australian Capital Territory (Re the Will of Elizabeth (a pseudonym) [2025] ACTSC 299), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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