McKay v McKay

In the matter of McKay v McKay, the applicant, Ian Ronald McKay, sought a statutory will to be made on behalf of his wife, the first respondent, Cecily Maureen McKay. Cecily sustained severe injuries in a motorcycle accident in 2006, leading to questions about her testamentary capacity. The court had to determine whether Cecily lacked the necessary capacity to make a will and, if so, whether the proposed statutory will accurately reflected what Cecily would have wanted if she had such capacity.

The legal issues before the court were twofold: first, whether Cecily had testamentary capacity, and second, if she lacked such capacity, whether the proposed statutory will was one she would have made. The applicant argued that Cecily was unable to comprehend the nature and effect of making a will due to her cognitive impairments. The court had to assess medical evidence and consider Cecily's understanding of her estate and the implications of her proposed bequests.

The court found that Cecily did indeed lack testamentary capacity due to her significant cognitive impairments following the accident. After reviewing the evidence, the court concluded that the proposed statutory will accurately reflected Cecily's wishes. The proposed will was consistent with her past instructions and aligned with her values and intentions, despite her current incapacity. Accordingly, the court authorised the making of the statutory will as set out in the applicant's affidavit.

The final orders of the court were that the applicant be granted leave to apply for a statutory will, that a will be made for Cecily in the terms outlined in the applicant's affidavit, and that the costs of the originating application be assessed on an indemnity basis and paid from Cecily's estate.