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Statutory Wills (Qld)

In Queensland, only those over the age of eighteen who have the requisite testamentary capacity can make a will. However, in some circumstances, an individual who is not able to make a will because they are too young or lack capacity would benefit from having a will. The Succession Act 1981 makes provision for this circumstance, allowing a person who is not capable of making a will to avoid dying intestate. The Supreme Court of Queensland can authorise the creation of a statutory will, with the intention of expressing the testamentary wishes of someone who otherwise lacks the legal capacity to create a will. This article explains the purpose of statutory wills in Queensland with reference to a recent Supreme Court application.

Testamentary Capacity

Testamentary capacity refers to a person’s legal capacity to make a will, based on a measure of their mental cognisance, recollection and comprehension. Someone is testamentary incapable if they do not understand the effect of creating a will, do not remember the assets they hold, and cannot comprehend that there are people that are entitled to inherit from their deceased estate.

A person can either have nil capacity, because for instance they were born with a significant intellectual disability, or lost capacity, because they no longer have the ability to form intent due to acquired impairment.

What Is A Statutory Will?

The Supreme Court has the authority to validate a statutory will for a vulnerable person who lacks testamentary capacity. However, the court will only make an order for a statutory will if the application meets established requirements. One of the first things an applicant should do is inform relevant parties of their intent. The applicant should particularly take care to notify anyone who would otherwise inherit from the vulnerable person’s deceased estate due to intestacy law.

The court will consider a statutory will application in light of whether the applicant is the appropriate party to make the will on behalf of the person who lacks capacity, and other additional factors. The application should provide evidence of:

  • The person’s lack of testamentary capacity and whether they are likely to regain capacity in the future;
  • The value and character of the estate;
  • The proposed will;
  • Any evidence relating to the person’s wishes;
  • Any previous wills;
  • Likelihood of claims against the deceased estate;
  • A history of charitable gift giving;
  • Who would inherit from the estate under intestacy; and
  • Any other relevant facts.

The court will consider this evidence and give leave for a statutory will if:

  • The applicant is an appropriate person;
  • The vulnerable person does not have testamentary capacity;
  • It is clear that all interested parties were informed of the application;
  • The proposed will or amendment is in keeping with what the vulnerable person would have written if they had testamentary capacity; and
  • It is appropriate to make such an order.

Who Is Eligible To Apply For A Statutory Will?

While anyone can make an application for a statutory will, the court will only accept an application from an appropriate person. An applicant is typically a close family member, but the court has previously allowed a friend, a carer and a lawyer to make an application for a statutory will.

Case Study

In Re RD [2021], the court ordered that a statutory will be made for a vulnerable 21-year-old man who had nil testamentary capacity because of a severe traumatic brain injury suffered as a child in a traffic accident. He has considerable assets from receiving compensation for his injuries but no will. The court was satisfied that the individual lacked testamentary capacity, that the applicant was an appropriate person to make the submission and that interested parties who might benefit from the estate had been informed of the application.

The proposed statutory will left a majority share to the young man’s mother who cared for him full time and was therefore financially dependent upon him. The remainder of the deceased estate was divided amongst close family members. The court considered whether this will would be in line with the wishes of the young man if he had capacity to make a will.

One of the ways that the court ascertains the wishes of a vulnerable person is by appointing a legal representative to act in their best interests in the proceeding. A litigation guardian is entrusted with the task of communicating for the vulnerable person. Here, the guardian interviewed the young man about his wishes for his property after his death. The guardian informed the court that based on conversations that she had with the man, he had no particular wishes about his deceased estate other than that his family should benefit instead of strangers who had not cared for his wellbeing. He mentioned that to him, family were those people who had stuck with him through “thick and thin”. The man had no wish to make any charitable gifts to any organisation, and did not want his father’s girlfriend to inherit his money.

The litigation guardian agreed with the substance of the proposed will (on the selection of beneficiaries and the amount of bequests), but proposed a different type of testamentary instrument to better suit what she considered were the young man’s wishes. The guardian recommended testamentary trusts as appropriate particularly for asset protection purposes. On the balance of all submitted evidence, the court was not persuaded that the young man wanted to exercise such strict control over the assets after his death. The court found that the alternative will suggestion was unnecessarily complex in administration, significant costs, and uncertainty for the beneficiaries, while the will on application was in keeping with the likely testamentary wishes of the young man.

As this case demonstrates, it is possible to create a statutory will for a person who lacks testamentary capacity. The contested wills team at Armstrong Legal can advise you on whether you are the appropriate person to make an application on behalf of a loved one without capacity, and help you make an application for a statutory will. Please call our team without delay on 1300 038 223 or make an appointment to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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