Statutory Wills: What are they?
Statutory Wills are also known as ‘court-authorised wills’ or ‘court-made wills’. They are orders made by the Supreme Court authorising the making, alteration or revocation of a will on behalf of a person who lacks the capacity to make, alter or revoke their own will (“the will maker”) (section 21 of the Succession Act 1981 (Qld)) (“the Act”).
In this case, the court places itself in the position of the testator with a view to determining the testator’s likely wishes.
There is a gradual increase in the application for these kinds of Wills. This is likely due to the ageing population in Australia as well as the statistical rise of people who suffer from dementia and other similar medical conditions.
When is a Statutory Will needed?
Where there is no Will, and they have lost capacity to make a Will—for example where the Will maker been in a fatal accident and has lost testamentary capacity, or where they are currently suffering from dementia or other similar illnesses. This category also involves minors who might have suffered an incapacitating event (e.g. a motor vehicle accident) and have received compensation for the event. If no Will was made for the Will maker who has lost capacity, the rules of intestacy would apply and this may result in someone benefitting from the deceased’s estate contrary to their wishes.
Example Scenario:
An incapacitated man who has a lifetime close relationship with his sisters and (for much of his life) his late mother, but has had no contact whatsoever with his biological father and/or his father’s subsequent children by later relationships. Under the rules of intestacy, the man’s assets would pass to his father (if surviving) or equally between all of his full and half siblings. An application for a statutory Will or codicil by the sisters would have a reasonable prospect of success in these circumstances.
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- Where they have lost capacity, and have an out of date Will that no longer reflects their intentions; or
- Where they have lost capacity and their Will has not been executed properly, or any other defects that needs to be rectified.
Who can apply for a Statutory Will?
Any person can make an application to the court for a Statutory Will on behalf of another person. However, the court must be satisfied that the person applying is the correct person to be making the application.
Generally, the applicant will be a spouse or a family member of the testator, however it is not mandatory that a family member be the person to make the application. For example, in the past the court has allowed a carer, a power of attorney, the testator’s lawyer or even a close friend of the testator to make an application for a Statutory Will on the testator’s behalf.
The process
Previously, when applying for a Statutory Will, there was a requirement to obtain leave from the court prior to making an application. However, since 25 May 2020, through the Justice and Other Amendment Act 2020, leave is no longer required and applicants may proceed to make a substantial application without first seeking leave of the court. This may mean that the process is now faster and less costly for those wishing to make an application for a Statutory Will.
For the substantial application, section 23 of the Act lists the information that must be provided to the court. This notably includes:
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- Satisfactory evidence of the testator’s lack of testamentary capacity, and any available evidence that they are unlikely to reacquire testamentary capacity in the future;
- An estimate (formed from the evidence available to the applicant) of the size and character of the testator’s estate;
- A draft of the proposed Will, revocation or alteration for which the order is sought;
- Available evidence describing the testator’s wishes;
- Details of who would be entitled to the testator’s estate if rules of intestacy applied; and
- Whether it is likely that a family provision claim will be made upon the testator’s death and by whom (if such details are available).
All of the above contributes to satisfying the ‘core test’ of section 24 of the Act.
What is the core test?
The core test is where the court must be satisfied that the proposed Will, alteration or revocation would accurately reflect the likely intentions of the testator if he/she were to have testamentary capacity.
In R, J [2017] SASC 153 (31 October 2017), an application was made to remove the testator’s biological father who he had no present relationship with. The court was satisfied that had the testator had testamentary capacity, he would have excluded his father from his estate. A statutory Will was made accordingly.
Where a Will contains a fatal defect, the core test can generally be easily satisfied as most testators with testamentary capacity would likely have authorized the rectification of the error (provided that there is no evidence suggesting that the wishes of the testator differ to this “prudent” approach).
If there are any changes in circumstances, a further application could also be made to the court for the court to reassess or “update” the terms of the Statutory Will.[1]
How we can help
If you believe it may be beneficial for you to apply for a Statutory Will on behalf of a spouse, family member, or close friend who has lost capacity, or you would like more information about Statutory Wills, please contact our client engagement officers to book an initial consultation with one of our lawyers.
If you do not have a Will yet and would like advice on how to put one in place to avoid the delays, cost and undesired effect of people benefiting from your estate in accordance with the rules of intestacy, please also feel free to contact our client engagement officers. You can find more information about our Estate Planning services here.
Footnotes
[1] See Re Pickles [2013] SASC 175.