Statutory Wills in Queensland: Making a Will For a Person Who Lacks Capacity

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.