Most people are not aware that it is possible to apply to the Queensland Supreme Court for the Court to make what is known as a 'statutory will' for someone who is unable themselves to make a will because of lack of capacity.
As you would imagine, the Court will not lightly make such a will, and will only do so in circumstances where the proposed will 'is or may be a will … the person would make if the person were to have testamentary capacity' (a slightly different test to that which applies in NSW and other jurisdictions).
Circumstances in which the Court might be prepared to make such a will include:
- someone who no longer has capacity and has never made a will, whose estate would otherwise be distributed in accordance with the rules governing distribution on intestacy (contained in the Schedule to the Succession Act – which might for example mean that their estate was divided equally between their parents, or split between their spouse and children), which might not be appropriate in the circumstances, and might mean that if the situation was not corrected during their lifetime that a family provision claim was required after death to make provision for dependents;
- a minor under the age of 18 years who has never had testamentary capacity (i.e. capacity to make a will) but may have significant assets (e.g. in a recent tragic NSW case an 8 year old boy was catastrophically injured at birth, and received an award of damages of $5.7 million. His affairs were managed by the Department of Family and Community Services, which made application to the Court to make a will, rather than have everything pass on death as if there were no will, in complicated family circumstances);
- a child who was raised entirely by one parent, after the other parent had never provided any support, suffered serious injury and now lacks capacity is expected to die soon, in circumstances in which a life insurance payout will be split equally between both parents on death, unless a will is made;
- an elderly person who may have previously made a will, but whose circumstances (or those of their family) may have changed materially since they made their will (e.g. a child has separated from his/her spouse, so that it might no longer be appropriate to leave a significant bequest to that spouse);
The Queensland Supreme Court has even been prepared to make a statutory will providing for the distribution of the assets of the testator to flexible testamentary trusts for the benefit of beneficiaries (rather than direct to beneficiaries, in what it saw as appropriate cases, providing increased asset protection and significant potential tax advantages).
In every case the decision of the Court will very much depend upon the particular circumstances, and the evidence provided as to whether the will being proposed has the support of all or most family members, and whether the Court is satisfied that the proposed will is a will the person would have made if they had testamentary capacity.
As indicated above, a recent case involved the replacement of the existing will of a woman who now lacked capacity (benefitting her son and daughter-in-law) with a statutory will, removing the daughter-in-law as a beneficiary after the son and daughter-in-law separated.
This is not a simple area of law, and it is certainly not a case of simply proposing a new will to the Court and the Court 'rubber stamping' a will which members of the family say the testator who lacks capacity would have made, but as you can imagine the ability and willingness of the court to make a new will for someone who lacks capacity can be extremely important, and have far reaching effects.
We have particular expertise in estate planning advice.
If you or members of your family or friends are aware of circumstances in which it may be appropriate to seek the assistance of the Supreme Court in making a will for someone who:
- does not have a will, and has suffered impaired capacity; or
- does have a will but you do not consider the will accurately expresses what would now be their intentions
or other estate planning issues, please do not hesitate to contact our office to discuss available options.
If you feel you have not been given adequate provision from the Will of a family member or if you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email firstname.lastname@example.org.
Ken Waddington Nicole Downs
(07) 5443 4866 (07) 5443 4866