Often, we talk about assessing client’s capacity and it is widely known that a person must have “capacity” to make or change their Wills.

Some people, either because of conditions such as dementia or intellectual disabilities or even illness, do not have capacity to understand all that is necessary to make a Will.

But what happens when someone has lost capacity and their circumstances continue to change. What if their old Wills are no longer appropriate but they don’t have capacity to change it?

A Statutory Will is a Will made for a person by a Court in circumstances where the person does not have the mental capacity to make the Will for themselves. It is also possible for a Court to make a Will for a child who is under 18 in circumstances where that child is able to express a wish to make a Will and the Court is satisfied that the child understand the nature and effect of the proposed Will.

Who may apply for a statutory Will?

The person making the Application to the Court for a Statutory Will must be an appropriate person to make that Application. The Court will look at the nature of the person’s relationship with the person for whom the Application for the Will is being made. The following may be an appropriate person, however obviously each case is assessed individually:

  • A spouse;
  • A parent of a child who is the primary carer and has a close relationship with that child;
  • Relatives who have a relationship with and an interest in the welfare of the person concerned;
  • A person’s Administrator, which is someone who has been appointed by QCAT to look after a person’s affairs.

When considering the Application a Court will consider:

  • Why it is that the person is unable to make the Will for themselves;
  • Details of the person’s financial position;
  • What would happen to the person’s Estate if they died without a Will;
  • The proposed terms of the Will;
  • Why the Applicant is an appropriate person to make the Application;
  • Why the proposed Will is a Will that the person would make if they had the capacity to do so.

A typical example of the need for Statutory Will is Bock v Bock (Unreported Supreme Court of Queensland No 8794 of 2010 de Jersey CJ). The young man suffered severe brain damage. The claim settled for $5.375 million. Had he died without a Will, his Estate would have passed on intestacy equally between his parents. The evidence however demonstrated that his father had little contact with him over the years, whilst his mother was devoted to his full time care. A statutory Will favouring the mother over the father was made to the Court.

If you have a friend or relative who has lost capacity however wishes to change their Will or have reason to believe that if a person had the relevant testamentary capacity to make or change their Will, would do so, then we recommend you contact our office, 5444 1022, to discuss Statutory Wills in more detail.