Statutory Wills & Testamentary Capacity

In 2012 MPL (In respect for his dignity, privacy and vulnerability the Court ordered that any personal information was de-identified) was involved in a motor vehicle accident. He was seriously injured, and was left with multiple physical injuries and a traumatic brain injury.

A personal injuries claim resulted in an award of damages, now valued at $7.3 million, which is administered by a Trustee company.

MPL is now 24. In February this year he executed a Will (“the 2016 Will”). His mother has applied to the Supreme Court of Queensland for an order authorizing that a Will be made for MPL

“to resolve the uncertainty as to whether the Will dated 4 February 2016 is a valid Will… because there could otherwise be a dispute, following his death, especially because his estate is more than $7 million.”

Additionally there is a concern, that due to his brain injury, MPL lacks testamentary capacity. The proposed Will is in identical terms to the 2016 Will, except for the execution clause (“the proposed Will”).

The Trustee supports the application for the making of a Will as given the size of MPL’s estate, it is important that he has a valid Will in place.

The Court had to be satisfied that:

(a) MPL lacks testamentary capacity and if so;

(b) Should the Court make an order authorising the proposed Will to be made?

The Court was satisfied that the evidence submitted shows that MPL lacks testamentary capacity, and does not actually know the extent of the property of which he is disposing. Medical evidence showed that he has persistent short-term memory loss due to his traumatic brain injury and could only recall the value of his estate because he either saw the amount that day or it was read out to him.

Courts have historically exercised a protective jurisdiction for the benefit, and in the interest, of people who lack testamentary capacity.

The Court was satisfied that the proposed Will is or may be one which MPL would make if he were to have testamentary capacity; it is identical to the 2016 Will except for the execution clause and, reflects MPL’s testamentary wishes. Additionally the estate is large, and should be protected by a statutory Will.

The Court authorised a Will to be made for MPL in terms of the proposed Will. If MPL was to die without a valid Will his estate would pass to his parents in equal shares, this is not in accordance with his testamentary wishes.

MPL was a young man when he was involved in a motor vehicle accident which may explain why he did’t have a Will. Similarly we might think that we have plenty of time to plan for our future. How would you be placed if you were to have a catastrophic injury?

  • Do you have arranged income protection, life insurance or both?
  • Do you have and Advance Care Directive or Power of Attorney in place?
  • Have you made a Will?

Perhaps it’s time to take steps to do these things today.


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