CASE: Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530

WARNING: Disturbing content; child abuse

In this 2009 decision, Justice Palmer compared two different applications for a Court made Will (known as a Statutory Will).

Robert Fenwick had made a Will in 1987. Ten years later, he suffered a severe head injury at work which resulted in permanent cognitive impairment.

It was likely that the beneficiaries in his 1987 would die before him, causing an intestacy and Robert's more than $2million estate passing to the State government. To avoid that, Robert's brother John applied for a Statutory Will that would result in Robert's estate passing to his cousin's children.

The other application was in relation to an 11-year-old child who was given the pseudonym of Charles. Charles had suffered severe and irreversible brain damage when he was 4 months old. His medical condition also meant that he had a diminished life expectancy.

Charles received a victim's compensation payment which was managed by the Public Trustee on his behalf.

Charles was going to die intestate (without a Will), which was likely to result in his estate passing to his parents. Yet it was his parents who were suspected of having caused Charles' injuries when he was 4 months old.

The Public Trustee applied for a Statutory Will to be made for Charles that would leave his estate to his sister.

These differing applications were used as an opportunity to assess the approach of the Court to Statutory Will applications.

Justice Palmer was critical of the approach at the time to engage in what he referred to as a "fictitious test" whereby the Court pretended that the incapacitated person did have capacity in order to determine what Will that person would make.

Instead, he adopted this this test: is there a fairly good chance that a reasonable person, faced with these circumstances, would execute the Will that is proposed?