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Can a person who lacks testamentary capacity have a will made for them?

Courts can authorise the making of a Will where a person lacks testamentary capacity

If a person lacks the testamentary capacity to make, alter or revoke their own Will, a Statutory, or ‘court-made’, Will can be authorised by the Court on behalf of that person [1].

The Court can only approve a proposed Statutory Will if:

a.  the person for whom the Will is to be made lacks testamentary capacity; and
b.  the person is alive at the time the order is made.

Circumstances where courts may make, alter or revoke a Will

The Court can order a Will to be made, altered or revoked in various circumstances including, for example, where:

  • the person has lost capacity due to an injury;
  • the person has developed a condition, such as dementia, resulting in loss of capacity; or
  • the person has an illness that impacts on their mental capacity sufficient that they do not have the requisite testamentary capacity.

A Statutory Will can be made on behalf of a minor.

When is a Statutory Will appropriate?

A Statutory Will is often appropriate where the incapacitated person has significant assets (for example, from a compensation claim) and they have not made a Will, or a Will has previously been made and circumstances necessitate the need for that Will to be altered or revoked. If an incapacitated person does not have a Will, their estate will be distributed in accordance with the rules of intestacy which may result in an inappropriate distribution. A Statutory Will provides the mechanism to overcome this.

An application for a Statutory Will can be made by a family member or any person who satisfies the Court that they are an appropriate person to apply on behalf of the incapacitated person.

Before the Court will grant leave to apply for a Statutory Will, it must be satisfied:

a.  the applicant is an appropriate person to make the application;
b.  that adequate steps have been taken to allow representation of all persons interested in the application, such as potential beneficiaries;
c.  that the incapacitated person lacks testamentary capacity;
d.  that the proposed Will, alternation or revocation would be one that would be done by the incapacitated person, if they had capacity; and
e.  that it is appropriate for an order to be made.

Information the court will require in order to make a Statutory Will

a.  why the application is required;
b.  evidence the person lacks testamentary capacity and whether it is likely capacity will be acquired or regained in the future;
c.  a reasonable estimate of the size and character of the estate;
d.  a draft of the proposed will, alteration or revocation;
e.  any evidence available of the incapacitated person’s wishes;
f.  any will previously made by the incapacitated person;
g.  any likelihood of a family provision application being made following the incapacitated person’s death;
h.  details of any gift for a charitable or other purpose that the incapacitated person might reasonably be expected to give under a Will;
i.  the circumstances of a person for whom provision might reasonably be expected to be made by a Will by the incapacitated person; and
j.  evidence of any persons who might be entitled to claim on intestacy.

Estate planning is a preferable more cost-effective strategy

While it is preferable and more cost-effective to implement estate planning strategies prior to any loss of capacity, a Statutory Will is a strategy available to endeavour to implement an incapacitated person’s wishes. It is anticipated an ageing population will lead to an increased need for Statutory Wills and case law shows Statutory Wills are being obtained in a wide-range of situations.

 

NOTE

[1] Section 21 Succession Act 1981 (Qld)

 

For information or assistance regarding Statutory Wills or any estate planning or estate administration matter, please contact our experienced Wills, Trusts and Estate Planning Team at Bell Legal Group on (07) 5597 3366 or email law@belllegal.com.au.

Disclaimer

This article was written by Janine O’Brien, solicitor. Its publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.