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, also known as a court-made will, is a will made or altered by a court on behalf of an individual who cannot create or change their own will.
Statutory laws authorise this type of will and protect those unable to voice their testamentary intentions due to mental incapacity, extreme youth, or debilitating illness.
When is a Statutory Will Needed?
Statutory wills are typically needed when individuals lack the legal and mental capacity to make or alter their own will.
This incapacity can stem from several situations, leading to court intervention to ensure that the person’s assets are distributed according to their wishes.
Below are a few circumstances that may necessitate a statutory will:
Mental Incapacity
Mental incapacity can occur due to several conditions, such as dementia, severe intellectual disability, or other cognitive impairments.
If an individual has never had the mental capacity to create a will or has lost this capacity over time due to these conditions, a statutory will can be made on their behalf.
Illness or Accident
A sudden illness or accident can result in a person losing their capacity to make crucial decisions, including the ability to create or amend their will.
In such cases, a statutory will may be necessary to protect the individual’s interests and ensure their assets are disposed of according to their presumed wishes.
Minors with Significant Assets
In Australia, minors (individuals under 18) generally do not have the legal capacity to create a will.
However, there can be exceptional cases where a minor may inherit or be awarded substantial assets following a compensation claim or due to a family member’s death.
In such cases, it may be appropriate to apply to the court for a statutory will to be created on behalf of the minor to protect their interests and to ensure proper management and distribution of their assets.
Severe Physical Disability
A person might be completely aware and able to make decisions but be unable to communicate or sign a will due to a severe physical disability or condition. A statutory will can be used to ensure their testamentary wishes are legally documented.
How Does Statutory Will-Making Process Work?
The process of making a statutory will involves several steps:
- Application: A person connected to the individual in question, such as a family member, carer, or legal representative, applies to the court for a statutory will to be made or changed.
- Evidence: The applicant must provide evidence supporting the need for a statutory will, which may include medical evidence of incapacity and evidence of the person’s likely wishes.
- Draft Will: A draft will is prepared, reflecting what the court believes the individual would have wanted. This might involve considering the individual’s last will, current situation, relationship with potential beneficiaries, and any expressions of their testamentary wishes when they were capable.
- Court Hearing: The court then considers the application and evidence, hearing from any interested parties, including family members or potential beneficiaries.
- Court Decision: If satisfied that the proposed testament will reflect what the individual would have wanted and is in their best interests, the court will approve the will.
What are the Components of a Statutory Will?
A statutory will includes similar components to a traditional will:
- Executor: The person or institution appointed to administer the estate.
- Assets: A list of the individual’s assets, such as real estate, bank accounts, personal belongings, and other valuable items.
- Beneficiaries: The people or organisations that will receive the individual’s assets.
- Distribution of Assets: Detailed instructions on how the assets will be distributed among the beneficiaries.
Need a Lawyer?
What are the Advantages and Disadvantages of Drafting a Statutory Will?
Like all legal processes, statutory will have both advantages and disadvantages:
Advantages
- Protection: They protect the interests of individuals who lack testamentary capacity, ensuring their assets are distributed according to their likely wishes.
- Prevention of Disputes: They can prevent family disputes over the distribution of assets after the individual’s death.
Disadvantages
- Cost: The process of applying for a statutory will can be costly, as it often involves legal and court fees.
- Time-Consuming: The process can be lengthy, mainly if the case is complex or there are disputes among potential beneficiaries. In such situations, seeking guidance from a skilled will dispute lawyer can streamline the process and provide valuable assistance.
- Uncertainty: Despite the court’s best efforts, there can be uncertainty about whether the will truly reflects the individual’s wishes.
Also read: Breaking Down the Cost of Contesting a Will in Queensland
Ensure Your Loved Ones are Protected with a Statutory Will
Is someone close to you unable to make a will? Don’t leave their estate to chance. Contact Walker Pender Group today.
Our team of experienced legal professionals can guide you through applying for a statutory will, ensuring your loved one’s assets are managed and distributed according to their best interests.
At Walker Pender Group, we believe in protecting your family’s future. Connect with us today, and let us help secure your loved one’s legacy.
