Re MTX

The matter of Re MTX was heard by the Supreme Court of Victoria. The applicant sought the making of a statutory will for his wife, who had been diagnosed with Alzheimer’s dementia. The couple had four children, and historically had made corresponding wills in accordance with financial and tax planning advice. The applicant had recently made an amendment to his will, which unintentionally resulted in his wife’s current will providing an inequitable outcome for the children. The applicant’s wife did not now have the capacity to amend her will.

The legal issues before the court were whether there was satisfactory evidence of the applicant’s wife’s lack of testamentary capacity, whether there was an estimate of the size and character of the relevant estate, whether there was a draft of the proposed will, and whether there was evidence of the applicant’s wife’s wishes, and evidence provided in relation to the terms of any will previously made by her. The court also needed to consider whether there was evidence available in relation to whether there was a gift to a charitable or other purpose that would be reasonably expected to be made by her, and whether the statutory will ought to be made in the terms sought.

The court found that there was satisfactory evidence of the applicant’s wife’s lack of testamentary capacity, and that there was an estimate of the size and character of the relevant estate. A draft of the proposed will was provided, and evidence was provided in relation to the applicant’s wife’s wishes and the terms of any will previously made by her. There was no evidence of a gift to a charitable or other purpose that would be reasonably expected to be made by her. The court was satisfied that the statutory will should be made in the terms sought.

The court made an order as per the draft, granting the applicant’s application for the making of a statutory will for his wife.