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Statutory Wills – What Are They?

Does someone you know lack capacity and has no Will?

In circumstances where a person lacks mental capacity to make a Will for themselves, the Court has power to make a Will for that person.  This is called a Statutory Will.

Some people may suffer from conditions for example advanced dementia or have intellectual disabilities that mean that they do not have the capacity necessary to make a Will.

A Court also has the power to make a Will for a child who is aged under 18 where that child has expressed a wish to make a Will and the Court is satisfied that the child understands the nature and effect of the proposed Will.

Eligibility to apply for a Statutory Will

To apply to the Court for a Statutory Will you must be an eligible person. The Court will consider the relationship with the person for whom the application for the Will is being made.  The Court has found the following to be an appropriate person to make the Application: –

  • A spouse;
  • A parent of a child who is the primary carer and has a close and enduring relationship with the child;
  • Relatives who have a relationship with, and an interest in the welfare of the person concerned;
  • A person’s Administrator, that is, a person who has been appointed by the Queensland Civil and Administrative Tribunal to look after the person’s financial affairs.
Steps involved

If you are considering making an application for a statutory will, you will require legal presentation.

To apply to the Court for a Statutory Will you will need to file an application together with supporting affidavits, that is, sworn statements wherein you will need to satisfy the Court of various matters that are set out under the relevant legislation. In Queensland, that relevant legislation is the Succession Act 1981 (Qld).

The supporting affidavits will need to set out information such as: –

  1. Why the Applicant is an appropriate person to make the Application;
  2. Why the person is unable to make a will for themselves. This will require medical evidence that makes it clear that the person lacks capacity to understand the nature and effect of the Will and to make a Will;
  3. The financial position of the person;
  4. If they died without a Will, what would happen to the person’s estate;
  5. The proposed terms of the Will or Codicil. A copy of the proposed Will and/or Codicil should be provided to the Court; and
  6. Why the proposed Will and/or Codicil is a Will or Codicil that the person would make if they had capacity to do that.
When a Statutory Will may be necessary?

If a person dies without a Will, then the law will prescribe how their estate will be administrated. These laws are known as the laws of Intestacy which are default rules that apply in the absence of a Will.

These default rules may not be appropriate in all circumstance and in some situations, it can lead to injustices. A Statutory Will application can overcome this potential injustice.

Costs

The Court in the appropriate circumstances will make an order that the person who brought the application and has incurred the legal costs in doing so, be paid by the Estate or funds of the person for whom the application has been made.

If you or someone you know wants more information or needs help or advice about applying to the Court for a Statutory Will, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au.