Court decision

Statutory Wills and loss of capacity – a recent case which avoided an intestacy

By Greg Cox and Krystal Bellamy / 14 July 2020

HopgoodGanim Lawyers recently acted for the enduring attorney of an elderly lady with dementia (who we will refer to as “A”) in an application for a statutory Will. A statutory Will was sought because, although A had an existing Will, the beneficiaries named in it had predeceased her, meaning that without a new Will, A would die intestate. This undesirable outcome was avoided after our client successfully obtained orders from the Supreme Court of Queensland authorising a new Will to be made for A.

What is a statutory Will?

A person must have testamentary capacity in order to make a valid Will. A person may lack testamentary capacity because he or she is, for example, incapacitated by illness or injury or suffers from a mental disability. In these circumstances, the Court has power to authorise the making of a Will on the person’s behalf. The Court also has power to authorise the alteration or revocation of an existing Will. Applications for statutory Wills are usually made by a relative or a substitute decision-maker of the person lacking testamentary capacity. Importantly, the Court only has power to make the relevant order if the person is alive at the time of the order.

Why seek a statutory Will?

A statutory Will may be necessary or desirable in order to:

  • address potential problems with an existing Will;
  • adjust beneficial entitlements under an existing Will; 
  • deal with changes in a person’s financial and family circumstances over time; or 
  • avoid an intestacy, as was the case with A. 

The intestacy rules operate where a person dies intestate (meaning without a valid Will). The rules provide for a person’s estate to be distributed amongst the person’s relatives in a set manner depending upon the person’s family circumstances. 

In A’s case, as she had no spouse or biological children, Queensland’s intestacy rules meant that one or more of her siblings, nieces, nephews and cousins would be entitled to share in her estate upon her death. To complicate matters however, little was known about A’s family. A had migrated to Australia from Europe several decades ago and what little was known of her background suggested that she had no such living relatives. Investigating and confirming this following A’s death could have proved a costly and time-consuming exercise. If no next of kin were able to be traced, A’s estate would be deemed bona vacantia (meaning vacant or ownerless goods) and would become an asset of the Queensland Government. 

What is required in a statutory Will application?

The Court’s exercise of jurisdiction in relation to statutory Wills is protective in nature and is informed by what is for the benefit, and in the interests, of the person who lacks testamentary capacity.  

The applicant is required to give the Court a wide array of information including:

  • the reasons why an order is being sought;
  • evidence that the person lacks testamentary capacity; and 
  • a draft of the proposed Will, alteration or revocation.

Ultimately, the Court may only make the relevant orders if satisfied that, among other things, the proposed Will, alteration or revocation is or may be a Will, alteration or revocation that the person would or may make if the person had testamentary capacity. 

Although limited information was available to us about A’s testamentary wishes, we were able to demonstrate to the Court that A had a long-standing history of charitable giving. Following an extensive review of A’s donations made over several years, we presented a proposed Will to the Court, which provided for the bulk of A’s estate to pass to three charities which A had clearly held in high regard. The Court approved the proposed Will and authorised the Will to be made on A’s behalf.

If you would like advice or assistance regarding the making of a statutory Will on behalf of a person who lacks testamentary capacity, please contact our experienced Estates and Succession team.

Key Contacts
Greg Cox
Special Counsel
Greg is one of the leaders of HopgoodGanim’s Estates and Succession team and offers more than 30 years’ experience in estate planning, administration and litigation.
Krystal Bellamy
Senior Associate
Krystal is a Senior Associate in our Estates and Succession team.

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