Statutory Wills / Court-Authorised Wills
In order to make a will, the will maker (also known as a testator) needs to have testamentary capacity to make a valid will. In brief, this requires an understanding of what a will is, understanding and appreciation of what property they own, their close relationships (family and friends) who they might leave a gift to, and being free of any delusions or illnesses affecting mental capacity. With an aging population throughout Australia, there is an associated increase in the diagnosis of conditions affecting mental capacity, such as dementia and Alzheimer’s disease.
This begs the question – what happens if a person has lost capacity, and either doesn’t have a will or has a will that is appropriate to their circumstances? This could result in an injustice if the situation isn’t addressed, which can be demonstrated with the following example:
Mr X is an elderly gentleman who has been diagnosed with dementia and doesn’t have capacity to make a will.
He is married to Mrs Y, but they separated more than 10 years ago and have no relationship with one another – but they haven’t officially been divorced.
Over the last 5 years, Mr X has been supported by his niece, Ms A. Ms A has always shared a close bond with her uncle, and has been helping him for many years as his attorney under Mr X’s enduring power of attorney.
If Mr X had a will leaving his estate to Mrs Y from many years earlier, or died without a will, then his estate would pass to Mrs Y – because despite having no relationship, they remain married.
To fix this type of scenario, the Supreme Court is empowered under legislation to authorise a new will to be made for any person lacking capacity (sometimes known as a ‘statutory will’ or ‘court-authorised will’ because the court is empowered under statute to authorise the will). To do so, the court puts itself in the position of the will maker and the court must be convinced that the will proposed is one that “is or may be” a will that the incapacitated person would make if they had testamentary capacity.
These types of court applications can be technical and complex, but may be important in proactively protecting the estate of an incapacitated relative or friend. If you’re worried about this issue on behalf of a close relative or friend, then please contact us for a free 15-minute telephone conversation to see how we can assist you in the statutory will application process.