This is the fifth in our series of articles on the uncertainties of death. Click here to read Part 1.
The Uncertainties of Death Series
- The Uncertainties of Death Part 1: What Happens Without a Will?
- The Uncertainties of Death Part 2: Can You Have More Than One Spouse?
- The Uncertainties of Death Part 3: Does Your Will Control Your Superannuation?
- The Uncertainties of Death Part 4: Can a Token Gift Prevent a Will Challenge?
- The Uncertainties of Death Part 5: Can a Court Make a Will After Loss of Capacity?
- The Uncertainties of Death Part 6: Can My New Partner’s Children Challenge My Will?
- The Uncertainties of Death Part 7: Can I Make My Own Will?
- The Uncertainties of Death Part 8: Can a Will Appoint a Guardian for a Child?
- The Uncertainties of Death Part 9: How Often Should I Update My Will?
Myth: “A person without capacity is no longer able to update their affairs.”
Wrong!
It is not widely known that a court can authorise a Will for a person who has lost testamentary capacity.
This is sometimes called a statutory Will or a court-made Will.
In Queensland, the Supreme Court can authorise a Will to be made or altered on behalf of a person who does not have testamentary capacity.
This can be particularly important where a person’s existing estate plan no longer reflects their circumstances or wishes.
When might a court-made Will be needed?
A court-made Will might be required where:
- a person has dementia and their current Will is no longer appropriate; or
- they have no Will and their estate would pass to unintended beneficiaries under the laws of intestacy.
A statutory Will can therefore provide a way to address a person’s estate-planning needs after they have lost testamentary capacity.
What does the court consider?
Before making an order, the court must consider a number of matters.
Under the Succession Act 1981 (Qld), the Supreme Court must be satisfied about matters including:
- that the person who lacks testamentary capacity is alive when the court makes the order;
- that the person applying is an appropriate person to make the application;
- that adequate steps have been taken to represent people who have a proper interest in the application; and
- that the proposed Will is, or may be, a Will that the person would make if they had testamentary capacity.
The court must also approve the proposed Will before the order takes effect.
What information is needed for a statutory Will application?
The court requires information about the person’s circumstances before it can decide whether to approve a statutory Will.
This may include:
- details about why the applicant is seeking the order;
- evidence that the person lacks testamentary capacity;
- information about the likelihood of the person regaining capacity;
- details of the size and nature of the person’s estate;
- a draft of the proposed Will;
- evidence of the person’s wishes;
- details of any previous Will; and
- other information relevant to the application.
The court therefore needs more than a draft Will. It needs information that helps establish what the person would likely have wanted if they still had testamentary capacity.
Why can a statutory Will application be urgent?
The court must make the order while the person is still alive.
This means an application may need to be made urgently if there is a risk that the person could die before the court makes the order.
A court cannot make a statutory Will after the person’s death.
For this reason, anyone considering a statutory Will application should obtain legal advice as soon as possible.
Can a court-made Will help with estate planning?
A court-made Will can be very useful where an incapacitated person’s estate plan is no longer appropriate.
For example, a person’s circumstances may have changed significantly since they made their existing Will. Their current Will may no longer reflect their wishes, relationships or financial circumstances.
A statutory Will may also help where a person has no Will and their estate would otherwise pass under the laws of intestacy to beneficiaries they may not have intended to benefit.
However, the court must carefully consider the person’s wishes, family circumstances, assets and existing estate-planning arrangements.
What is testamentary capacity?
Testamentary capacity refers to a person’s legal capacity to make a valid Will.
A person who lacks testamentary capacity may not be able to make or change their own Will.
However, losing capacity does not necessarily mean that their estate-planning arrangements can no longer be addressed. In appropriate circumstances, the Supreme Court can authorise a statutory Will.
Key points about statutory Wills in Queensland
- A person who has lost testamentary capacity may still be able to have a Will made or altered on their behalf.
- The Supreme Court of Queensland can authorise a statutory Will under the Succession Act 1981.
- The court must consider whether the proposed Will is, or may be, what the person would have wanted if they still had testamentary capacity.
- The court can consider the person’s estate, existing Will, wishes and the interests of other people affected by the application.
- The person must still be alive when the court makes the order.
- A statutory Will application may therefore require urgent attention.
Frequently asked questions
Can you make a Will for someone who has lost capacity?
In Queensland, the Supreme Court can authorise a Will to be made or altered on behalf of a person who lacks testamentary capacity. The court must first be satisfied that the requirements of the Succession Act 1981 have been met.
What is a statutory Will?
A statutory Will is a Will that the court authorises to be made or altered on behalf of a person who does not have testamentary capacity.
Can a person with dementia have their Will changed?
If a person has lost testamentary capacity, they may no longer be able to make or change their own Will. However, in appropriate circumstances, an application can be made to the Supreme Court for an order authorising a statutory Will.
Can a statutory Will be made after someone dies?
No. The person must still be alive when the court makes the order authorising the statutory Will. This means an application may need to be made before the person’s death.
What does the court need to know before approving a statutory Will?
The court may require information about the person’s testamentary capacity, estate, existing Will, wishes, family circumstances and the proposed Will.
The applicant must provide the information required under the Succession Act 1981 and satisfy the court that the proposed Will is appropriate.
Conclusion
Losing testamentary capacity does not necessarily mean that a person’s estate-planning arrangements can no longer be addressed.
A statutory Will can provide a solution in appropriate circumstances. However, the court must carefully consider whether the proposed Will reflects what the person would have wanted if they still had testamentary capacity.
If you are concerned that a person’s current Will is no longer appropriate because they have lost capacity, it is important to obtain legal advice promptly.
Wakerley Legal can assist with Wills and estate planning, including advice about estate-planning arrangements where capacity becomes an issue.
Contact Wakerley Legal to discuss your circumstances.