What is a Statutory Will?
A Statutory Will is a Will made for a person by a Court in circumstances where the person does not have the mental capacity to make the Will for themselves.
Some people, either because of conditions such as advanced dementia, or intellectual disabilities, or illnesses that cause delusions of the mind, do not have the capacity to understand all that is necessary to making a Will.
It is also possible for the Court to make a Will for a child who is aged under 18 in circumstances where that child is able to express a wish to make a Will and the Court is satisfied that the child understands the nature and effect of the proposed Will.
Applications for Statutory Wills are becoming very common in Queensland and the Court here has made many Statutory Wills in a broad range of situations.
WHO MAY APPLY FOR A STATUTORY WILL?
The person making the application for a Statutory Will must be an appropriate person to make that application. The Court will look at the nature of that person’s relationship with the person for whom the application for the Will is being made and the following are examples of the sort of applicants who have been found to be appropriate:-
- A spouse;
- A parent of a child who is the primary carer and has a close and enduring relationship with the child;
- Relatives who have a relationship with, and an interest in the welfare of the person concerned;
- A person’s Administrator, that is, a person who has been appointed by the Queensland Civil and Administrative Tribunal to look after the person’s financial affairs.
HOW DO YOU MAKE AN APPLICATION?
An application for a Statutory Will is an application that will require you to have legal representation. It will be necessary for the Court to be satisfied of various matters that are set out under the relevant legislation. In Queensland, the relevant legislation is the Succession Act of Queensland 1981.
It will be necessary for Affidavits, that is, sworn Statements, to be provided to the Court setting out such information as:-
- Why it is that the person is unable to make the Will for themselves. This will mean that medical evidence has to be provided which makes it clear that the person lacks capacity to understand the nature and effect of the Will and to make a Will;
- Details of the person’s financial position;
- What would happen to the person’s Estate if they died without a Will;
- The proposed terms of the Will or Codicil. A copy of the proposed Will and/or Codicil should be provided to the Court;
- Why the Applicant is an appropriate person to make the Application;
- Why the proposed Will and/or Codicil is a Will or Codicil that the person would make if they had capacity to do that.
INTESTACY – WHY A STATUTORY WILL MAY BE PREFERRABLE TO THE ESTATE BEING ADMINISTERED ACCORDING TO THE INTESTACY RULES?
In some situations if a person dies without a Will, then the law will prescribe what is to happen to their Estate when they die. These laws are known as the laws of Intestacy.
They are the default rules that apply in the absence of a Will.
For example, in Queensland, if a person dies without a Will leaving a spouse and child, the spouse will receive the first $150,000.00 of the Estate and the household chattels and share the balance with the children.
In some situations this can lead to injustices. A Statutory Will application can overcome this potential injustice.
SERVICE OF APPLICATION ON OTHER PARTIES
As part of the process, the Court will expect the application to be served on those who will have an interest in the matter. This includes people who would, under the intestacy laws take an interest in the Estate.
In some instances, and we have recently encountered this, it can be quite difficult to try to locate relatives. However, the Court has made it clear that it will generally require and expect attempts to be made to identify, locate and notify those people who would otherwise have taken an interest on Intestacy.
As mentioned, it is essential that, if you are considering making an application for a Statutory Will, you obtain legal advice.
COSTS OF THE APPLICATION
In most instances the Court will make an order that a person incurring legal costs in making an application should be paid by the Estate of the person for whom or out of the funds of the person for whom the application is being made.