Statutory Will

Advance Health Directive

The Supreme Court may make an order authorising a will to be made for a person without capacity. A Statutory Will is also known as a ‘court-authorised will’ or ‘court-made will’.  They are orders of the Supreme Court authorising the making, altering or revoking of a will for a person who is still alive but is without capacity.

A Statutory Will might be appropriate in any of the following circumstances:

  1. A person with dementia has a will that is out of date and needs to be updated;
  2. A person with dementia’s existing will includes a gift of their house to a beneficiary, but that beneficiary has moved into a nursing home and the house has been sold. In such circumstances, this gift will fail to take effect, and the beneficiary would not receive any compensation for the loss of the gift;
  3. The beneficial entitlements under an existing will of a person without capacity need to be adjusted because of the circumstances of the beneficiaries named in the will;
  4. A distribution of the incapacitated person’s estate in accordance with the laws of intestacy is inappropriate in their particular circumstances, for example because of family dynamics or they had suffered a catastrophic brain injury at birth and received a large compensation payment. The child’s parents may have separated, and only one parent may have acted as the child’s care-giver for a number of years, while the other parent was estranged;
  5. The person without capacity’s financial and family circumstances have changed over time;
  6. A minor who will suffer a lifelong incapacity, receives a substantial inheritance.

The Court must be satisfied that the person making the application for a Statutory Will is the correct person to be doing so.  Common applicants include:

  1. The spouse of the incapacitated person;
  2. A parent of an incapacitated child who is the primary carer and who has a close and enduring relationship with that child;
  3. An administrator who looks after an incapacitated person’s financial affairs; and
  4. A relative who has a relationship with an incapacitated person and understands the circumstances of their affairs and family.

In deciding whether to make orders, a Court will require the following matters to be addressed in evidence:

  1. The person’s lack of capacity, and whether they are unlikely to regain capacity in the future;
  2. The size and character of the person’s estate;
  3. A draft of the proposed will, revocation or alteration;
  4. The incapacitated person’s wishes and how these have been determined;
  5. Details of who would be entitled to the person’s estate if the rules of intestacy applied and their relationship with the person; and
  6. Any possible family provision claims which may be made on the incapacitated person’s estate.

At the hearing, the Court may call for information on any matter relating to the application in any way it considers appropriate, and it is not bound by the rules of evidence.

If the Court orders that a will be made, altered or revoked, the document will be signed by the Registrar on behalf of the incapacitated person.

A Statutory Will can protect the interests of a person without capacity, ensuring their assets are distributed according to their likely wishes. They may also prevent family disputes over the distribution of assets after the person’s death.

If you wish to explore making a will for someone without capacity, you should contact one of our lawyers to discuss.

Ben Trost
Senior Litigation Solicitor