Statutory Wills – What Happens When Someone Loses Capacity but Doesn’t Have a Will in Place?

Many people have the ability to make their own Will and are able to make their own informed decisions about who they would like to gift their assets to upon their death. In order to make a Will, a person must have ‘testamentary capacity’.  

There are an increasing number of people who do not have testamentary capacity (whether due to illness, injury, age-related conditions or intellectual impairment) and as such, they are unable to: 

1. make their own Will; or 
2. change or revoke the terms of their existing Will which may not reflect their current intentions.  

In circumstances where a person does not have any valid Will, the statutory rules of intestacy govern how that person’s assets will be distributed upon their death. There are many instances where the outcome prescribed by these statutory rules do not actually reflect a person’s wishes with respect to who they intend to receive a benefit from their estate.  

 If a person loses testamentary capacity before they have made a Will, or where a person’s lack of testamentary capacity prevents them from changing or revoking a Will, there are some circumstances where a court may make an order for a “Statutory Will”. 

What you need to know about Statutory Wills

 A Statutory Will is a Will, revocation or alteration of an existing Will made pursuant to an order by the Supreme Court for a person who lacks the testamentary capacity to make, alter or revoke their own Will. 

The court will only make an order for a Statutory Will if: 

1. the person on whose behalf the Application is being made lacks testamentary capacity and is alive at the time of the Order being made; and 
2. the court is satisfied that the proposed Will, alteration or revocation of an existing Will is or may be a Will, alteration or revocation that a person would make if he or she had testamentary capacity.  

An Application for a Statutory Will is often made on behalf of a person who lacks testamentary capacity due to illness, injury, an age-related condition or intellectual impairment.  An Application for a Statutory Will can also be made on behalf of a minor (for example, in circumstances where the minor has been awarded a significant amount of compensation in a personal injury claim).  

Who can apply for a Statutory Will?

The court must be satisfied that the person who is making the Application is the appropriate person to take such action.  While a spouse, child or close relative may be the most appropriate person to make an Application, there are some instances where an Application can be made by a personal carer, a person’s Attorney or a close friend.   In any event, the court must be satisfied the person is the appropriate individual to make the Application.  

The details of making an application

A person making an Application for a Statutory Will on behalf of a person must provide the court with the following information: 

1. the reasons for making such an Application; 
2. evidence of the person’s lack of testamentary capacity; 
3. any evidence available as to the likelihood of the person regaining testamentary capacity;
4. an estimate of the size and character of the person’s estate;
5. a draft of the proposed will, or the revocation or alteration to which the order would apply;
6. any evidence of the person’s wishes;
7. the terms of any previous wills;
8. any evidence available as to the likelihood of a Family Provision Application being made in relation to the person’s estate;
9. any evidence available as to whether the person would likely leave a gift in their Will for a charitable organisation or other purposes; 
10. any evidence available as to the circumstances of a person for whom provision might reasonably be expected to be made in a Will by the person in relation to whom the order is sought;
11. any evidence available with respect to the persons who would be entitled to a share of the person’s estate pursuant to the rules of intestacy; and
12. any other facts relevant to the Application.  

The court may have regard to any of the above matters and may inform itself of any other matters as it considers appropriate.

If the court makes an Order for a Statutory Will, then it will have the same effect as if the person without testamentary capacity were capable of making a valid will and executing the Will in the manner prescribed by law.  

If the court makes an Order for an instrument that alters or revokes a Will (or part of a Will), then it will have the same effect as if the person without testamentary capacity were capable of validly revoking a Will (or part of a Will) and executed the instrument in the manner prescribed by law.  

Case example: APB, ex parte Sheehy, Re [2017] QSC 201

APB was an elderly man who was 91 years of age and lacked testamentary capacity. APB owned substantial assets. APB’s Litigation Guardian made an Application to the Supreme Court, seeking an order for a Statutory Will to be made on behalf of APB.

The Respondents (other parties interested in the Application) included APB’s three adult children, a grandson, a business partner, APB’s solicitor, and old and new friends.  

APB had made several earlier Wills. 

The court made an order for a Statutory Will providing: 

1. specific monetary gifts for APB’s adult children, APB’s grandson and several old friends; and 
2. the remainder of APB’s estate is to be distributed between two discretionary trusts.  On the winding-up of the trusts, the capital was to be divided between APB’s children, a spouse of one of the children, a grandchild and two charities.

The importance of specialist legal advice

An Application for a Statutory Will is a complex process that requires a considerable amount of evidence to be submitted to the court. If you believe a Statutory Will may be appropriate for a family member or close friend who lacks capacity, do not hesitate to contact our office to arrange an appointment with one of our experienced Will and Estate solicitors.