The Supreme Court on behalf of a person who lacks testamentary capacity makes a Statutory Will. Statutory Wills may be referred to as ‘court-made wills” or “court-authorised wills’. Statutory Wills are a fairly recent development in Australia and might be needed where a person has dementia, and they lack the capacity to update their existing will which is out of date. Similarly where a person suffers an injury in childhood, if a Statutory Will is not made, their estate will pass according to the laws of intestacy, which might not be appropriate in that particular case.
Family members commonly make Statutory Will applications, however there is nothing to stop a carer, lawyer, or financial adviser from making them. As discussed yesterday someone who stands to benefit under the proposed will is not disqualified from making the application.
The Court needs to be satisfied that ‘the proposed will … is or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’.
The Court must be satisfied of various matters that are set out under the relevant legislation. The applicant for a Statutory Will must supply the Court with information about the lack of testamentary capacity of the person. Details of the person’s financial position; Who would inherit the person’s Estate if they died without a Will and a copy of the proposed Will, Codicil or both should be provided to the Court.
The Court also must be satisfied that the Applicant is an appropriate person to make the Application; and why the proposed Will, Codicil or both would be made by the person if they had capacity to do so.
The Estate of the person for whom the application is being made will pay the costs of the application in most instances.