What is a Statutory Will?

For a person to be able to make, alter, or revoke a Will, that person must have testamentary capacity (that is, the ability to understand the nature and effect of the document).

If a person lacks capacity, whether because of accident, illness, or an age-related condition such as dementia, the Succession Act 1981 (Qld) provides authority for the Supreme Court to make a Will for the person who lacks capacity, as long as the Court determines the Will expresses the intentions of that person if that person had capacity.

The Court has authority to make a Will and to amend or revoke an existing Will to prevent unjust outcomes:

• if there have been changes in a person’s financial and family circumstances;
• to change beneficial entitlements under an existing Will;
• to avoid an intestacy; or
• to deal with problems with an existing Will.

A Statutory Will is commonly known as a Court-Ordered Will or Court-Authorised Will.

A Statutory Will can also be made for a child under 18 years of age if that child can understand the nature and effect of a Will and is capable of being able to express their wishes in relation to the Will. A Statutory Will may desirable for a child if, for example, the child has received a large amount from a personal injury claim or an inheritance.

How to Make an Application for a Statutory Will

When the Supreme Court considers an application, the Court must be satisfied that the person making the application is an appropriate person, and does so by considering the relationship the applicant has with the person lacking capacity. An appropriate person can include, among others:

• a family member who has a relationship with, and interest in the welfare of, that person;
• an attorney of the person concerned;
• an administrator appointed by the Queensland Civil and Administrative Tribunal for that person; or
• a close friend of that person.

Matters the Court Will Consider

Information that may be required by the court can include:

• the reasons the application is being made;
• evidence that the person for whom the Will is being made lacks capacity and the likelihood, if any, that the person may acquire or regain capacity;
• details of the size and nature of the person’s estate;
• a draft of the terms of the Will, amendment or revocation being requested;
• any evidence in relation to the person’s wishes regarding disposal of their estate;
• evidence of any prior or existing Wills or Codicils of the person;
• any evidence available of a gift for a charitable or other purpose that the person might reasonably be expected to make by a Will;
• any evidence available of the circumstances of a person who it might reasonably be expected the person would provide for under a Will;
• any evidence available of any person who might be entitled to claim under the intestacy rules;
• any evidence of the likelihood of a family provision application being made in relation to the person; and
• any other facts relevant to the application.

Notice to Interested Parties

When making an application for a Statutory Will, a copy of the application must be served on all people who have an interest in the matter, including those who would benefit under an existing Will or the rules of intestacy.

How can Bell Legal Group help you?

Our highly experienced team couples high-level service with pragmatic advice to achieve positive outcomes in the best interests of the client. If you require advice in relation to a Statutory Will, please contact our Estate Litigation Team at Bell Legal Group on (07) 5597 3366, email law@belllegal.com.au or use our contact form.

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The content of this publication is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.