In 'nil capacity' cases under s 22(b) of the Succession Act 2006 (NSW), the Court applies an entirely objective test: whether there is a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated person, would make the proposed testamentary provision. The English fictional approach of imagining a hypothetical person of sound mind is rejected. In 'lost capacity' cases, the test is subjective, focused on the actual or likely intention of the incapacitated person. In 'pre-empted capacity' cases (typically teenagers), the test involves both subjective and objective elements. Straightforward, unopposed statutory will applications may be dealt with on the papers in chambers.
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