Section 26(b) of the Wills Act 1997 (Vic) requires a substantial degree of precision and exactitude in establishing that a proposed statutory will accurately reflects the likely intentions of the incapacitated person. A proposed will cannot be authorised merely because it is consistent with an assumed desire to avoid intestacy; it must be shown on the balance of probabilities to reflect the person's likely intentions more probably than other possible dispositions. English authorities on statutory wills under the Mental Health Act (UK) must be approached with caution given the fundamental differences between the UK and Victorian legislation. Costs of an unsuccessful application for leave under s.26 are not payable from the estate where the estate is not a party and the application is brought by an interested party rather than a disinterested administrator.
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