Re the Full Board of the Guardianship and Administration Board

[2003] WASCA 268

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Guardianship and Administration
2. › Administration orders
3. › Capacity of represented person to deal with estate
4. › Whether making a will constitutes a 'disposition' within s 77(1)(a)
5. › Nature and effect of a will or testamentary instrument
6. › Ambulatory character of wills
7. › Devolution of property on death
8. › Guardianship and Administration Act 1990 (WA), ss 64(1), 77(1)(a)
1. Wills and Succession
2. › Testamentary capacity
3. › Person subject to administration order
4. › Whether administration order creates conclusive presumption of lack of testamentary capacity
5. › Lucid intervals
6. › Guardianship and Administration Act 1990 (WA), s 64
7. › Wills Act 1970 (WA)
1. Statutory Interpretation
2. › Meaning of 'disposition'
3. › Whether 'disposition' in s 77(1)(a) encompasses testamentary instruments
4. › Context and purpose of protective legislation
5. › Guardianship and Administration Act 1990 (WA), s 77(1)(a)
1. Practice and Procedure
2. › Precedent
3. › Full Court departing from its own earlier decision
4. › Circumstances justifying departure
5. › Court of last resort for practical purposes

Quick Take

Section 77(1)(a) of the Guardianship and Administration Act 1990 (WA) does not apply to the making of a will by a person subject to an administration order. No consent of the Board or written authority of the administrator is required for a represented person to make a valid will. The validity of such a will depends solely on whether the testator had testamentary capacity at the time of execution, to be determined in the usual way on any application for probate. The existence of an administration order does not create a conclusive presumption of lack of testamentary capacity.