At ROC Legal, we have encountered many situations where individuals are unable to make a will due to a lack of testamentary capacity. This can be a challenging and emotional situation for families, as they grapple with the prospect of their loved one’s assets being distributed according to intestacy laws, which may not align with the person’s wishes or the family’s expectations. Fortunately, in Queensland, the Succession Act 1981 provides a solution in the form of statutory wills.
What is a Statutory Will?
A statutory will is a will that is created and validated by the Supreme Court of Queensland on behalf of a person who lacks the testamentary capacity to make a will themselves. This mechanism allows the court to express the testamentary wishes of someone who is otherwise unable to do so, ensuring that their assets are distributed in a manner that is consistent with their intentions and the needs of their beneficiaries.
Understanding Testamentary Capacity
Testamentary capacity refers to a person’s legal and mental ability to create a valid will. To have testamentary capacity, an individual must:
- Understand the nature and effect of making a will
- Comprehend the extent of their assets and property
- Recognize the people who are entitled to inherit from their estate
- Not be suffering from any delusion or mental disorder that may influence their decision-making
A person may lack testamentary capacity due to various reasons, such as:
- Being under the age of 18
- Having a significant intellectual disability from birth (nil capacity)
- Losing capacity due to an acquired impairment, such as dementia or brain injury
When a person lacks testamentary capacity, they are unable to create a legally valid will, which can lead to their assets being distributed according to the rules of intestacy. This can result in outcomes that may not reflect the person’s wishes or the needs of their loved ones.
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The Process of Applying for a Statutory Will
To obtain a statutory will for a person who lacks testamentary capacity, an application must be made to the Supreme Court of Queensland. The application process involves several key steps:
1. Notifying relevant parties: The applicant must inform all interested parties of their intention to apply for a statutory will, particularly those who would inherit from the person’s estate under intestacy laws.
2. Gathering evidence: The applicant must provide the court with comprehensive evidence to support the application, including:
- Proof of the person’s lack of testamentary capacity and the likelihood of regaining capacity in the future
- The value and nature of the person’s assets and estate
- The proposed will or amendments to an existing will
- Any evidence of the person’s wishes, such as previous wills or expressed intentions
- The likelihood of claims against the estate
- The person’s history of charitable gift-giving
- Details of who would inherit under intestacy laws
- Any other relevant facts or circumstances
3. Demonstrating appropriateness: The applicant must show that they are an appropriate person to make the application on behalf of the individual who lacks capacity. This is typically a close family member, but in some cases, friends, carers, or lawyers have been permitted to make such applications.
4. Satisfying the court’s requirements: For the Supreme Court to grant leave for a statutory will, the applicant must demonstrate that:
- The vulnerable person lacks testamentary capacity
- All interested parties have been properly informed of the application
- The proposed will or amendments are consistent with what the person would have likely created if they had testamentary capacity
- It is appropriate for the court to make the order
If the court is satisfied that these requirements have been met, it will authorize the creation of a statutory will on behalf of the person who lacks testamentary capacity.
Benefits of Statutory Wills
Statutory wills serve several important purposes and offer numerous benefits for individuals who lack testamentary capacity and their families:
1. Ensuring the person’s wishes are respected: A statutory will allows the court to give effect to the testamentary wishes of someone who is unable to express them due to a lack of capacity. This ensures that their assets are distributed in a manner that is consistent with their intentions and values.
2. Avoiding intestacy: Without a statutory will, a person who lacks testamentary capacity would die intestate, meaning their assets would be distributed according to the rigid rules of intestacy. This can lead to outcomes that may not reflect the person’s wishes or the needs of their beneficiaries.
3. Providing for loved ones: A statutory will can ensure that the person’s loved ones, including family members and dependents, are adequately provided for and that their needs are taken into account in the distribution of the estate.
4. Minimising disputes: By clearly expressing the person’s testamentary wishes, a statutory will can help to minimise the risk of disputes and conflicts among beneficiaries, which can be costly, time-consuming, and emotionally draining for all involved.
5. Protecting vulnerable beneficiaries: In some cases, a statutory will may be necessary to protect vulnerable beneficiaries, such as minor children or individuals with disabilities, by establishing trusts or other mechanisms to manage their inheritance.
The Role of an Estate Planning Lawyer
Navigating the process of applying for a statutory will can be complex and challenging, particularly during a time of emotional stress and uncertainty. This is where the guidance and expertise of an experienced estate planning lawyer can be invaluable.
An estate planning lawyer can assist in:
- Assessing the person’s testamentary capacity and determining whether a statutory will is appropriate
- Identifying and notifying all interested parties
- Gathering and preparing the necessary evidence to support the application
- Drafting the proposed will or amendments
- Representing the applicant in court and advocating for the person’s best interests
- Implementing the statutory will and ensuring that the person’s wishes are carried out
Statutory wills are a vital legal mechanism for ensuring that the testamentary wishes of individuals who lack capacity are respected and given effect. By allowing the Supreme Court to create a will on behalf of someone who is unable to do so themselves, statutory wills help to avoid the potential unfairness and unintended consequences of intestacy laws.
If you have a loved one who lacks testamentary capacity and would benefit from a statutory will, it is essential to seek the advice and guidance of an experienced estate planning lawyer.
Start Your Estate Planning Journey with Us
Connect with our experienced team to discuss your needs and find the right path forward.