A statutory Will is a Will made on behalf of an individual who lacks the mental capacity to make a valid Will themselves. In these situations, the Supreme Court may grant approval for the creation of a Will that reflects what the person would have likely wanted if they were capable of making the decision. Statutory Wills are typically used when a person has lost the ability to understand or make decisions due to a cognitive disability or diagnosis (i.e. dementia, brain injury etc). They can also be used for person under the age of 18 who have assets in their personal name (i.e. because they have inherited assets/funds from another person).
The primary purpose of a statutory Will is to ensure that an individual’s estate is managed according to their wishes, even when they cannot express those wishes directly.
When is a Statutory Will Needed?
A statutory Will is necessary in the following situations:
If an individual is no longer deemed to have testamentary capacity, and they have not made a valid will prior to their incapacity, a statutory Will may be applied for by a family member or another interested party;
If someone has lost testamentary capacity and has never made a Will, it is important to have one in place for the distribution of their estate upon their death; if they don’t, then the laws of intestacy will apply. The Court can appoint a statutory Will to reflect the person’s presumed wishes; and
In cases where there is an existing Will but doubts or disputes arise about its validity or intentions, a statutory Will can help resolve conflicts between the surviving family members and beneficiaries and provide clarity.
How Does the Statutory Will Process Work?
Statutory Wills in the ACT are made in accordance with Part 3A of the Wills Act 1968 (ACT).
The following steps apply:
1] Court Application: An interested party, usually a family member, a partner, or a legal representative is required to make an application to the ACT Supreme Court for leave to apply for a statutory Will. The evidence provided by the interested person should include evidence of the person’s lack of testamentary capacity, the person’s personal circumstances, and their known or presumed wishes. Expert medical or psychological evidence may be required to satisfy the Court the person lacks testamentary capacity.
2] A Hearing: The Court will conduct a hearing wherein the Court will review the evidence presented and determine whether a statutory Will is appropriate. The Court may also consider the views of interested parties, such as family members, to help assess what the person would have wanted. To be satisfied that a statutory Will is required, the Court must be satisfied of the following:
There is reason to believe that the asserted individual who lacks testamentary capacity is incapable of making a Will; and
The proposed Will is, or is reasonably likely to be, one that the person would have made had they had testamentary capacity; and
It is or may be appropriate to make the Order for a statutory Will; and
The interested person applying for leave is an appropriate person to make the application; and
Adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person who lacks testamentary capacity.
3] Approval and Creation of the Will: If the Court agrees that a statutory Will is necessary, leave will be granted for the interested person to apply for an Order for a statutory Will to be created. Once the Order has been made, the Will will be created and signed by the Registrar of the Court.
4] Implementation: Once the statutory Will is approved, it will be treated as a legally binding document, just like any other Will.
Who Can Apply for a Statutory Will?
People who can apply for a Statutory Will include:
Family members: A spouse, children, or other close relatives of the individual may apply;
Legal representatives: A person acting under power of attorney or a guardian appointed to care for the individual may also apply; and
Executors of the estate: If a person has previously nominated an executor, they may apply on behalf of the individual, particularly if there are doubts or disputes arise about its validity or intentions; and
Beneficiaries: People who stand to inherit from the estate may also have standing to apply.
What Should a Statutory Will include?
A statutory Will should reflect the individuals’ likely intentions regarding the distribution of their estate. This can include:
The distribution of assets: How property, money, and other assets should be divided among beneficiaries;
Appointment of executors: Who will be responsible for managing the estate and ensuring the Will is carried out; and
Provision for dependents, including any spouse or children.
What happens when there is no statutory Will?
If there is no valid Will, and no Statutory Will in place at the time an individual dies, then that person’s estate will be distributed in accordance with the laws of intestacy. You can read more about intestacy in the ACT here.
If you have a loved one who you think has lost testamentary capacity, or is on their way to losing testamentary capacity, it is important that you seek legal advice to understand what options are available to put their affairs in order. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
