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What Is A Statutory Will? (Vic)

In Victoria, only a person with testamentary capacity can make a valid will. There is, however, a provision under the Wills Act 1997 for someone to make a will on behalf of an incapacitated person so that the incapacitated person is prevented from dying intestate. The Supreme Court of Victoria can authorise a statutory will if they feel that the person cannot make a valid will and the proposed document is reflective of the likely wishes of the person. This article explains the role of a statutory will in Victoria and illustrates the purpose of this statutory instrument through a case study.

Testamentary Capacity

Testamentary capacity is a legal concept that denotes the ability of a person to understand, remember and comprehend at the exact time that they create a will. Testamentary incapacity is described as either nil capacity, where the individual has never had the ability to form testamentary intent or lost capacity, where the individual no longer has the ability to comprehend the significance of making a will.

In Victoria, an individual is presumed to have necessary testamentary capacity until proven otherwise in the Supreme Court.

The test of testamentary capacity is four-fold:

  • Does the person understand the intent and effect of creating a will?
  • Does the person remember (in broad terms) their assets?
  • Does the person understand that there are specific people who have a right to inherit in their will?
  • Does the person suffer from a disorder or disease that would affect their ability to make a sound and reasonable will?

What Is A Statutory Will?

The Supreme Court of Victoria has the power under the Wills Act 1997, to authorise a statutory will for someone who lacks sufficient testamentary capacity to make a traditional will. The court does not draft the terms of the will, instead, the applicant submits a prospective will and the court assesses whether to authorise the document. The court will make this order when there is evidence that the individual does not have the capacity to update or create a will and the proposed will reflects the probable wishes of the person if they had sufficient capacity.

As part of this proceeding, the court will appoint an independent legal practitioner to represent the incapacitated person and assess their capacity to participate in the proceedings and investigate the wishes of the person.

What Does The Court Consider?

The court will evaluate the application against the list of factors set out in the Wills Act 1997 to determine the incapacitated person’s most likely intentions. The applicant should submit a draft of the proposed will and may be questioned as to:

  • The size and nature of the estate;
  • Any evidence of testamentary wishes;
  • Likelihood of the person having testamentary capacity in the future;
  • The terms of any previous will;
  • The likelihood of Testator Family Maintenance claims against the estate;
  • The circumstances of prospective beneficiaries of the statutory will;
  • The circumstances of anyone entitled to inherit under intestacy;
  • Any suggestion that the incapacitated person would make charitable donations in their will.

When Is A Statutory Will Necessary?

A statutory will may be warranted when the individual is:

  • someone who lacks the necessary testamentary capacity to create a will but they have a high net worth; and
  • they have no previously created will; or
  • the previously created will is out of date and does not provide for family members and other entitled individuals.

Who Can Apply For A Statutory Will?

The Wills Act 1997 allows anyone to make an application for a statutory will. Typically applicants can be divided into two groups, those who physically care for the incapacitated person (family members, carers and friends), and those who are in charge of the incapacitated person’s affairs (guardians, administrators and solicitors).

Case Study

In Bailey v Richardson (2015), two sisters applied to the Supreme Court for a statutory will on behalf of their elderly friend of nine years, who had no existing will and lacked the testamentary capacity to create a new will. As the elderly woman had no partner or children when she died intestate her estate would pass to a distant niece.

During the court hearing, the plaintiffs presented a report from a specialist aged care physician and a neuropsychologist assessment to establish the lack of capacity. The court appointed a lawyer to represent the elderly woman’s interests and assess her testamentary intentions. The solicitor testified that while she did lack capacity, it was possible to determine that the proposed will represented her likely intentions, had she been capable of forming testamentary intent.

The court granted the application for a statutory will on the basis of the sisters’ long friendship and care for the elderly woman, her statements that she wished to pass money on to her friends and the lack of testamentary intention mentioning her niece. The court was not satisfied that the plaintiffs’ had established her likely intentions if she had testamentary capacity, but the court was convinced that on the balance of probability the proposed will reflected her intentions.

If you are thinking about applying for a statutory will for a friend or loved one, the Contested Wills Team at Armstrong Legal can assist you with every step in the process. Do not hesitate to get in touch with our friendly team, please call 1300 038 223 for any legal assistance.

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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