Flanagan J today handed down judgment in a hotly anticipated statutory will case.

The proposed testator’s son separated from his wife after the testator lost capacity. The applicant was the testator’s husband. The application was on the basis that, if she were to have capacity, she would change her will so that assets would be kept out of her son’s hands, to protect them from the pending Family Court proceedings.

Flanagan J held that the core test was satisfied, in that the proposed will was one that the testator may have made were she to have capacity. However, he was not satisfied that it was appropriate for an order to be made (in terms of s24(e) of the Succession Act).

Leave to apply for an order was therefore refused.

Reasons have been delivered, but as a de-identification order was made, they can’t yet be published.