Hello, my name is Margaret Arthur. I’m a partner at CRH Law and today I’ll be speaking with you about Statutory Wills.
These days, you might hear people talk of Statutory Wills. A Statutory Will is a will that’s made by a judge in the Supreme Court of Queensland. Now, why would you ask the court to make a Statutory Will?
Well, there’s a number of reasons. Basically, it’s to overcome what may otherwise be an unjust situation when the person dies. Essentially, a Statutory Will is a will made for a person who’s unable to make a will for themselves and that maybe because they lack mental capacity and that could be because of dementia, or an intellectual disability, or perhaps a psychiatric condition that causes delusions of mind. It can be a range of reason why a person lacks mental capacity to make a will for themselves. Something that most of take for granted.
Now a judge has the ability in Queensland to consider a range of evidence and to decide whether a particular will that’s presented to the judge is one that the person would have made if they were able to make a will for themselves. Now they’re complex applications that you would need to see a lawyer if you know someone who you think might benefit from such an application.
Essentially, there’s things that need to be established to the judge’s satisfaction. For example, you’ve got to have medical evidence to show that the person doesn’t have capacity to make a will and who is not likely to make a will for themselves. You need to show that you’re an appropriate person to make the application. Some of the sorts of people that the court has considered appropriate to make an application for Statutory Will, are spouses, or person’s parent, or their administrator, that is someone who looks after their financial affairs, or somebody else who is in a close and enduring relationship with that person.
Now, there have been many situations in which Statutory Wills have been made now and in many cases, it’s overcome what would otherwise be a very unjust and unfair outcome when that person dies and not one that thye would have wanted. A Statutory Will application does involve some technicalities and it is necessary to seek legal advice at the outset.
You could also bear in mind that a Statutory Will application can be made where there is an existing will but that will might be very old and no longer really reflect what the person would have wanted if they were able to make a will for themselves. It’s also possible for an application to be made on behalf of a child. If that child is able to express what they would want in a will and to understand the nature in effect of a will. The sort of situation in which that might occur is where a child had been involved in a serious car accident and a compensation payment has been made to them, and they may want or need to make a will, and to have a wish that their wishes known as to what they would want to happen with that compensation payment upon their death.
So, it’s a very useful and helpful instrument of the law the Statutory Will and it’s one that if you know somebody whom you understand doesn’t have a will or has made a will in the past but their circumstances have changed so much that it’s no longer appropriate, you might want to get some legal advice on the issue.
A notable Queensland case came up a couple of years ago where a Statutory Will was particularly useful. It concerned an elderly man who had dementia who was married to a woman who really took advantage of his affairs. He was a wealthy man and the woman knew that. She had him made a will in her favor. Now in that situation, the court made a statutory will for the man. Basically, making a will for him that expressed his previous wishes and which ensured that his property passed the way he had always intended.
So, there’s many situations in which Statutory Will might be appropriate. You would and should get some legal advice if you know of somebody who you think could benefit from such an application.