Statutory Wills

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Statutory Wills, also known as ‘court-authorised wills’ or ‘court-made wills’, are orders made by the Supreme Court authorising the making, alteration or revocation of a will on behalf of a person who lacks the capacity to make, alter or revoke their own will (“the will maker”) (section 21 of the Succession Act 1981 (Qld)) (“the Act”).

The court places itself in the position of the testator with a view to determining the testator’s likely wishes.

Applications for these kinds of Wills are gradually increasing, most likely due to the ageing population in Australia and the statistical rise of people who suffer from dementia and other similar medical conditions.

When is a Statutory Will needed?

The need for a Statutory Will is determined on a case-by-case basis, generally in consultation with a legal practitioner.

Some possible scenarios where it may be advisable to make an application for a Statutory Will may include:

  1. Where the testator suffers from dementia or a similar illness and their existing Will is out of date and needs to be updated, however due to their illness they lack the capacity necessary to make, alter or revoke their own Will;
  2. There is a clear defect in the testator’s existing Will which needs to be rectified;
  3. A testator has an existing Will, however it could be structured in a significantly more tax-efficient way.

Who can apply for a Statutory Will?

Any person can make an application to the court for a Statutory Will on behalf of another person. However, the court must be satisfied that the person applying is the correct person to be making the application.

Generally, the applicant will be a family member of the testator, however it is not mandatory that a family member be the person to make the application. For example, in the past the court has allowed a carer, a power of attorney, the testator’s lawyer or even a close friend of the testator to make an application for a Statutory Will on the testator’s behalf.

The process

There are two steps to obtaining a Statutory Will.

Apply for leave to make the main application

The first step is for the applicant to make an application to the Court for permission to make the “main application”. The court must be satisfied that such an application is being made solely in the testator’s interests, and is not being made by the applicant for an improper reason.

This step is to prevent an application from going ahead if it is frivolous or clearly unlikely to succeed.

In the case of Doughan v Straguszi [2013] QSC 295, it was argued that a Statutory Will application had been made for an improper reason. The existing will presented uncertainties caused by a failure of the will to properly deal specifically and accurately with the family farm. However at that time, the testator’s son was also a potential bankrupt.

It was argued that the application had been made to protect the testator’s son from potential creditors accessing assets acquired by him under the existing Will. Upon assessment of the available evidence, the court concluded that the actuating purpose was not to defeat potential creditors but to address the broader family’s future beneficial interest in the family farm by rectifying the defect in the existing Will. While a court order creating a Statutory Will may have had the effect of defeating potential creditors, this was simply an ancillary consequence of the rectification of the errors in the existing Will and did not have a bearing on the making of the application. It was concluded that the testator would have made the same decision to create a new Will, based upon the errors present in her existing Will, notwithstanding that her son was the potential subject of bankruptcy proceedings.

Make application to the court

If the permission (leave) of the court is obtained, the second step is to make the actual application to the Court.

Section 23 of the Act lists the information that must be provided to the court when completing the second step. This notably includes:

  • Satisfactory evidence of the testator’s lack of testamentary capacity, and any available evidence that they are unlikely to reacquire testamentary capacity in the future;
  • An estimate (formed from the evidence available to the applicant) of the size and character of the testator’s estate;
  • A draft of the proposed Will, revocation or alteration for which the order is sought;
  • Available evidence describing the testator’s wishes;
  • Details of who would be entitled to the testator’s estate if rules of intestacy applied; and
  • Whether it is likely that a family provision claim will be made upon the testator’s death and by whom (if such details are available).

All of the above contributes to satisfying the ‘core test’ of section 24 of the Act. The core test is where the court must be satisfied that the proposed Will, alteration or revocation would accurately reflect the likely intentions of the testator if he/she were to have testamentary capacity.

For example, where a Will contains a fatal defect, it would be prudent for a testator (if they were to possess testamentary capacity), acting on proper legal advice in relation to the problems with the old Will and advantages of the proposed new Will, to revoke their current Will and create a new Will (Doughan v Straguszi [2013] QSC 295). As most testators with testamentary capacity would take this course of action, the court Will be likely to authorise the rectification of the error (provided that there is no evidence suggesting that the wishes of the testator differ to this “prudent” approach).

In the 2013 case of Re Pickles [2013] SASC 175, His Honour Gray J stated specifically that should there be a change in circumstances, a further application could be made to the court for the court to reassess or “update” the terms of the Statutory Will. To date, there have not been any such further applications, although the court clearly has the power to authorise such an amendment.

For more information regarding Statutory Wills

Please contact our Business Development Officers to book an initial consultation with one of our Brisbane Will Dispute & Estate Litigation lawyers today.