Breaking News - Court made Will now a reality - July 2009.

Diamond Conway Lawyers has received the judgement of the NSW Supreme Court in their application to the Court to have it make a codicil for a client who lacked testamentary capacity. This is the first case of its kind in NSW and as such a landmark.

In giving the judgement the Probate judge set out some guidelines for such applications in a range of different scenarios. For example, it may be asked to make a will for someone who has never made a will before and never had capacity (such as a person who suffered brain damage at birth). Or it may be looking at a possible codicil for someone who once had capacity then lost it as the result of an accident or a stroke, but who had made a will before losing capacity.

As a result, it seems that such applications may be more successful in NSW than they have been in Victoria under similar legislation.

Perpetual is either the trustee of significant funds for many incapacitated people, or is managing such funds for the OPC. It may therefore be able to assist those clients to solve problems arising with the succession of those funds on the death of the incapacitated person. Importantly, a court made will or codicil may in many cases avoid an intestacy and the undesirable outcomes of that.

As a matter of interest, the incapacitated person in this case had significant funds under the control of the OPC, which approved the costs of the application being paid from his funds.

Diamond Conway Lawyers now has the operating guidelines from the Court to apply for a Court made will in NSW.

However, costs are probably in the range of $25K - $45K depending on circumstances, so it is not an option to be pursued lightly.