TESTAMENTARY CAPACITY AND THE APPOINTMENT OF THE NSW TRUSTEE & GUARDIAN

Date: Mar 14, 2013
Document Type: Article

The making of an Order appointing the NSW Trustee & Guardian the manager of a person’s estate does not in all circumstances lead to the conclusion that the managed person lacks testamentary capacity during the currency of the order.

Each case is determined by its own facts.

In some cases the Court has found that even when it has been determined either by Order of the Supreme Court or the Guardianship Tribunal that a person is in need of a guardian or financial manager and is not capable of managing his or her own affairs, in some circumstances that person still has testamentary capacity and is capable of making a will.

In circumstances where a financial management order has been made and the willmaker wants to make, change or revoke his or her will, the willmaker or those acting on behalf of the willmaker might consider making an application to the Court for an Order under Section 18 of the Succession Act for the Court to authorize the will to be made, altered or revoked.

Section 18 gives the Court power to authorize the will to be made or to be revoked for a person without testamentary capacity.

There is an interesting argument to be had about whether the Court would accede to the Application in circumstances where the willmaker’s testamentary capacity was uncertain.

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