Australia has an ageing population and there are an increasing number of people living longer with cognitive conditions, such as dementia. Legal issues posed by this have led to many developments in the law, one being the use of Statutory Wills. A Statutory Will is a Will made by the courts on behalf of a person who lacks testamentary capacity. The courts can also revoke or amend current Wills.
What is testamentary capacity?
It is a prerequisite for anyone making a Will to have testamentary capacity, which is assessed by the solicitor taking instructions to prepare the Will.
For someone to have testamentary capacity, they:
- Must be aware, and appreciate, the significance of the act in the law of making a Will;
- Must be aware, at least in general terms, of the nature, and extent, and value, of the estate over which the testator owns or over which the testator has power and authority;
- Must be aware of those who might reasonably be thought to have a claim upon the testator and the testator’s assets, and the basis for, and nature of, the claims of such persons; and
- Must have the ability to evaluate and discriminate between the respective strengths of the claims of such person.
Medical clearance (such as a report from a GP) is sometimes required if there is a question of testamentary capacity and this can be arranged by a solicitor.
No testamentary capacity
There a number of circumstances where a person may not have testamentary capacity including where they are under the age of 18, have intellectual disabilities or suffer from a cognitive condition such as dementia. In such cases, it is unlikely that they will have testamentary capacity and so are unable to make a Will.
This can become an issue where:
- a past Will no longer reflects the person’s wishes, or family circumstances,
- there has never been a Will, but the Estate is significant, or
- it is unfair for the Estate to be distributed according to the laws of intestacy.
How to apply for a Statutory Will?
An application to the court for a Statutory Will can be made a person who has a relationship to the person – such as a spouse, a parent, a relative or an administrator appointed by QCAT. The process can be complex and it is always advisable to speak with an experienced legal professional regarding Estate planning.
Our experienced Wills and Estates team can provide you with advice and guidance with all your Estate Planning needs. Get in touch to make an appointment.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.