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. 

    • Where they have lost capacity, and have an out of date Will that no longer reflects their intentions; or  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:

    • 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.



 [1] See Re Pickles [2013] SASC 175.

The Risks of Preparing an Informal Will – Lindsay v McGrath [2015] QCA 206

What are the risks associated with preparing an informal Will?  This article discusses the need for Will-makers to take great care when preparing their Will to ensure it satisfies all formal requirements so that it may be properly recognised by law after they pass away.

The consequences of an improperly made will can be that loved ones are left with ambiguous directions and have to pay costly legal fees out of their inheritance.

The decision of Lindsay v McGrath [2015] QCA 206 is the first Queensland Court of Appeal decision which involved an informal Will.



Nora Priscilla Lindsay passed away on 16 October 2012 at age 90 and was survived by her two adult children Geoffrey (the appellant) and Heather (the respondent). Nora made a Will with the Public Trustee back in 1986 however later revoked that Will prior to her passing. As there was believed to be no other Will the appellant applied to the Supreme Court for letters of administration on the basis of intestacy.

On 9 July 2013 Geoffrey later found handwritten documents written in the form of an informally made Will in a storage box containing personal items removed from the deceased’s family home. The contents of the document made instruction to gift the deceased’s Camp Hill property and its contents to Geoffrey and specifically made instructions not to leave anything to Nora’s estranged daughter (the respondent) and her children.

The appellant then brought an initial application in 2014 seeking that the Court find that the handwritten document as Nora’s last Will. The application was initially dismissed and later appealed in 2015.


The Law

Section 18 of the Succession Act 1981 (Qld) provides that the Court may dispense with the formal requirements of a Will so long as there is a document (or part of a document) which purports to state the testamentary intentions of a deceased person and demonstrates to the court sufficient evidence it was intended to form the deceased person’s Will.

The Court in this case considered the test provided in the NSW Court of Appeal decision in Hatsatouris v Hatsatouris [2001] NSWCA 408 to determine whether the document was a valid will:

    1. Was there a document?
    2. Did the document purport to embody testamentary intentions?
    3. Did the evidence satisfy the Court that the relevant deceased by some act or words demonstrate that it was his/her intention that the document operate as his or her last will?


The Decision

Despite there being no question that the handwriting in the document was the deceased’s and there was sufficient evidence supporting the fact the handwritten document embodied her testamentary intentions, the Court dismissed the appeal as there was insufficient evidence to establish this was intended to form the deceased’s final Will.  That is, the court effectively found that the informal documents did not amount to a Will.

The court noted from the Western Australian case of Oreski v Ikac, that it is not sufficient if the document was intended to record gifts “…or to be a note of instructions or a draft will or a ‘trial run’”[1] – there must be sufficient evidence that the “…deceased did not want to make changes to that document.”[2]

Given that Nora had prepared an earlier Will in 1986, it was presumed that she would have been aware that her Will should appoint an executor and contain her signature properly witnessed by a third party. Although the deceased clearly wrote her name on the document, there was no formal signature or date to demonstrate the document was now finalised.


Our Concluding Remarks

This case demonstrates the risks of improperly preparing a Will and the scrutiny the Court undertakes. before granting probate to an informal Will.

Even though the appellant was able to provide clear evidence that the deceased intended to disinherit her estranged daughter, her wishes were not honoured as the document did not satisfy s18 of the Succession Act.

Seeking legal advice at the time of preparing a Will can save your family much time, heartache and money down the track.


Have you made an informal Will and would like to rectify or create a new one?  Contact us today.

If you would like further advice on an informal Will left by a loved one, or you would like to have your Will prepared by one of our experienced Brisbane Estate Lawyers, please contact our Business Development Team on (07) 3252 0011 to arrange an appointment.



[1] Lindsay v McGrath [2015] QCA 206 9.

[2] Lindsay v McGrath [2015] QCA 206 60;73.

Why should you have a Will?

A Will is a legal document that records your personal directions or wishes about how to deal with the assets in your estate, and other affairs relevant to you, upon your death.  

A Will allows you to have a say on who will administer your estate and how your personal assets will be distributed.  Having a Will generally enables smooth and efficient transmission of your assets on your death. 

If you have children, a Will can assist you in providing security for their future.  You can also use your Will to nominate a guardian for your children if they are under 18 when you die. 

Without a Will, you will have no say on who administers your estate upon your death, and your assets will be distributed according to the laws of intestacy.  In Queensland these laws are contained in the Succession Act1981 (Qld). 


Considerations when making a Will  

Here are some key matters to consider if you have decided to make a Will:  

  1. Executors  
  2. Guardians 
  3. Your freedom and duty when making a Will  
  4. What can you give under a Will? 
  5. Passing control of trust and company structures 
  6. How do I give to members of my blended family? 
  7. Has my Will been properly prepared and signed? What happens if I don’t have a valid Will? 
  8. When should I update my Will?


1. Executors

A Will allows you to appoint an executor to be responsible for representing your wishes on your death, distributing your estate according to your Will, and protecting the interests of your loved ones. 

If you have chosen to appoint a friend or relative as executor, you do not need to disclose to them the contents of your Will. 

Your executors usually appoint lawyers to advise and help them. 

Think about:

    • First preferred Executor(s)  
    • Acting jointly? 
    • Age 
    • Capacity 
    • Relationship to each other 
    • Reserve executor(s)


2. Guardians

If you have a child or children under the age of 18, it is important that you consider having a say as to who their guardian will be when you pass away.   

It may be in your child or children’s best interests for you to set out who you want to care for them in your Will.  

If a parent of your child survives you, the surviving parent will generally continue to exercise parental care and authority over the child. 

Think about:

    • Gift to guardian(s)? 
    • Executors and trustees to advance monies for children 
    • Joint appointments – conditional or continuing? 
    • Guardian guidelines


3. Your freedom and duty when making a Will 

While you have capacity, you have the freedom to make a Will however you wish.  No one has the right to dictate to you (or demand to know) what your Will contains. 

However, when you are making a Will, the law effectively imposes a duty on you to consider anyone who might reasonably expect to benefit from your estate.   

Whether or not you have a Will, the law provides spouses (including de factos and some former spouses), children (including step-children) and certain dependants with the right to apply to the Court for further provision from your estate, after you have died, if they have not received adequate provision for their proper maintenance and support.  This is called a Family Provision Application. 

We recommend taking legal advice on the best approach to manage the risk of a Family Provision Application according to your personal circumstances.   

Think about:

    • disentitling conduct 
    • any inter vivos provision 
    • the size or nature of your estate 
    • strategic property holding


4. What you can give under a Will? 

Under the Succession Act 1981 (Qld), (1) a person may dispose by Will of: 

    • any property to which the Will maker is entitled at the time of their death (not on the date of the Will); and 
    • any property to which the personal representative of the Will maker becomes entitled, in their capacity as personal representative (including after the Will maker’s death). 

Think about:

    • Cash 
    • Real estate 
    • Shares/units in public companies/listed trusts 
    • Pets, motor vehicles, jewellery, art 
    • Assets outside Australia – do you need an international Will? 
    • Shares in private (Pty Ltd) companies 
    • Property holding arrangements  
    • Liabilities – do you have a solvent estate? 
    • Adequate descriptions of assets 
    • Forgiveness of loans or debts (CGT implications) 
    • Avoiding lists of gifts – risk of ademption 

Things that may not immediately form part of your estate on your death include: 

    • Superannuation in a Retail Fund or a Self Managed Super Fund (“SMSF”) 
    • Life Insurance proceeds 
    • Property used in a business – subject to partnership or other arrangements? 

Think about:

    • A review of the Register (folder) of SMSF core documents (trust deed, variations, and recent accounts, including member details) 
    • Binding Death Benefit Nominations – is yours valid? 
    • Life insurance policy  
    • Buy/sell or business succession arrangements


5. Passing control of trust and company structures

A person cannot dispose by Will of: 

    • Assets held by that person as trustee; (2)  
    • Other trust assets; 
    • Company assets. 

However, depending on your needs and intentions, trust and company structures can be appropriate vehicles to provide for the ongoing needs of your loved ones after you die. 

If you have a controlling interest in a trust or company holding valuable assets, you need to consider how this control might pass upon your death.  The time to consider this is when you make a Will.   

Think about:

    • Family Trusts / Unit Trusts / Hybrid Trusts / Fixed Trusts 
    • A review of the Trust Deed (and any variations), latest end-of-year financials for the Trust and Unit-holders Register for Unit Trusts 
    • Succession of Trustee  
    • Succession of Appointor (if any) 
        • Often the personal representative of the last surviving Appointor 
        • Consider nomination by Will (if Trust Deed allows) 
    • Trust property – any unpaid present entitlements? 
        • repayable on demand to the beneficiaries of the Trust.  If there are significant UPE, this can greatly reduce the actual Trust assets. 

Think about:

    • A review of the Constitution, Shareholders/JV Agreement (if any) and the most recent financial statements for the company 
    • Special rights attaching to different classes of shares 
    • Role of Directors  
    • Role of Shareholders 


6. How do I give to members of my blended family?

If you have had or are undergoing a divorce or separation, it is important to think about: 

    • any court sanctioned property settlement 
    • remaining outstanding property settlement matters 
    • any ongoing maintenance orders or arrangements 
    • child support 

These things may affect the enforceability of your Will or the risk of a Family Provision Application. 

If you have started a new marriage or de facto relationship, think about: 

    • how to provide for your spouse 
    • how to provide for any children of a previous relationship 
    • Possible mutual Wills with a Will Contract  
    • Deed of Family Arrangement with adult children / dependants


7. Has my Will been properly prepared and signed?

If you have made your Will yourself or are in the process of making one, we recommend that you seek legal advice to ensure it is valid. 

The Succession Act 1981 (Qld) (3) requires that a Will must be in writing and signed by the Will maker (or another person in the presence of and at the direction of the Will maker) with the intention of executing the Will.  This signature must be made or acknowledged by the Will maker in the presence of 2 or more witnesses present at the same time, at least 2 of whom must attest and sign the Will in the presence of the Will maker. 

In response to the COVID-19 pandemic, the Queensland Government passed legislation in 2020 modifying the usual requirements to enable electronic signing and remote witnessing of a Will under specific conditions.  However, these modified arrangements expired on 30 June 2021, and the usual requirements apply on and from 1 July 2021.   


What happens if I don’t have a valid Will? 

If you do not have a valid Will, we recommend you speak with a Wills and Estates Lawyer to assist you in making one while you still have capacity. 

If you have made a Will that does not comply with the legal requirements, the risks on your death include your loved ones becoming entangled in long and costly legal proceedings and the Court ultimately deciding that your Will is invalid.  Then your estate may be distributed according to your previous Will (if you have one) or the rules of intestacy.  

After you die, it is possible for the Court to dispense with the legal requirements for your Will if it does not comply.  However, the Court process will always cause delays and incur costs in the administration of your estate.  


8. When should I update my Will? 

You should review your Will regularly and consider updating your Will as your circumstances change. 

For example, you may need to consider updating your Will if: 

    • you have a child or children; 
    • you have a grandchild or grandchildren; 
    • you marry or divorce; 
    • your spouse or partner dies; 
    • an executor or beneficiary dies; 
    • your home or property ownership changes. 


Have further questions about making your Will? 

Contact our Business Development Team on (07) 3252 0011 to learn about our 1,2,3 Will-making process and arrange an appointment, or to book an estate planning consultation with one of our Brisbane Estate and Elder lawyers for a complex Will and estate plan. 

This article was written by Kathleen Stonehouse (Senior Associate).