Typically, the estate relates to an elderly person suffering from dementia, and the applicant is a potential beneficiary.

The court's authority to make or revoke a will for a person who lacks the mental capacity to understand what a will is, what their assets are, and who they have a legal obligation to benefit, is limited.

Section 21 of the Wills Act 1997 provides that a will (called a "statutory will") can be approved only where the court is satisfied that:

• the will is being authorised for a person who lacks testamentary capacity;
• the will reflects the likely "present intentions" of the person if he or she had testamentary capacity; and
• it is reasonable in all the circumstances to authorise the will.

It is often the second of these criteria - determining the likely present intentions of the will-maker - which causes most difficulty and in turn, decides the issue.

In Hill v Hill (2001) VSC 83 the will-maker made her only will at the age of 89 years leaving half her estate to the Cat Protection Society and half to her only child, a daughter. Subsequently her mental and physical condition deteriorated, and at the time her daughter applied for authorisation of a statutory will appointing the daughter as sole beneficiary, the will-maker lacked testamentary capacity. The daughter argued that her mother's attitude had changed since the making of her will four years previously.

The court found that, on the balance of probabilities, and on the basis of evidence from professional carers, the mother's likely present intentions, had she had testamentary capacity, would have been to benefit her daughter, albeit at the expense of the Cat Protection Society. The court also took into account the daughter's modest means and the prospect of her being able to make a successful testator's family maintenance claim after her mother had died, had a statutory will not been authorised.

By contrast, in Re Fletcher: ex parte Papaleo (2001) VSC 109, the court found that it was not possible to say what the likely present intentions of the will-maker were had she had testamentary capacity. The court was being asked to revoke a will made by Mrs Fletcher in 1970 dividing her estate equally between her son and daughter, on the basis that subsequently the son had borrowed almost $50,000 from his mother. The application was dismissed. The court found that there was no evidence or present indications of testamentary intention to infer that the mother had changed her 1970 intention of dividing her estate equally between her children.