Court Ordered Wills/Statutory Wills

To make a Will a person must have testamentary capacity, which means a person must be over 18 years old and understand the nature and effect of what they are doing.

The making of a Will can be seen as an intensely personal decision, not normally done by one person on behalf of another.

However, Section 21 of the Succession Act 1981 (Qld) allows the Court to authorise that a will be made, altered or revoked for a person without testamentary capacity.

Sections 21 to 28 of the Succession Act 1981 (Qld) were created by amendments to the Succession Act which commenced on 1 April 2006.

Similar provisions have now been introduced in all Australian jurisdictions.

Court Ordered Wills are also referred to as Statutory Wills.

Statutory Wills can be divided into three categories as follows:

  1. Lost Capacity Cases – where the person had capacity and made a Will during this time, but lost capacity later in life e.g. As a result of Dementia. The person’s previously made valid Will may no longer be appropriate to their current circumstances;
  2. Nil Capacity Cases – where a child from birth or early infancy suffers an illness or accident that causes loss of capacity. This person will never have the required capacity to make a Will and could potentially receive substantial compensation as a result of the accident. On their death their estate would be divided pursuant to the rules of intestacy which could result in an unfair distribution e.g. Where parents have separated and only one parent is providing the primary care and support; and
  3. Pre-empted Capacity Cases – which involve a person who does not have capacity to make a Will but their incapacity was formed at an age where he or she previously had the ability to express reasonable wishes or form a relationship prior to incapacity.

Applying for Court Ordered Will

To apply for a Court Ordered Will, you must first apply for leave of the court to make the application.

Before the court can grant you leave to make an application, the Court must be satisfied of the following:

  1. The applicant is an appropriate person to make the application; and
  2. Adequate steps have been taken to ensure all people with a proper interest in the estate are represented.

To make an order the court must then be satisfied that:

  • the person lacks capacity;
  • the person is alive at the time the Will is made;
  • the proposed Will is or may be a Will the person would make if they had testamentary capacity;

Summaries of two recent 2013 Queensland decisions are set out below:

Doughan v Straguszu & Ors [2013] QSC 295

The applicant was the daughter and Attorney for her mother under an Enduring Power of Attorney.
Her mother suffered from dementia and was therefore without capacity to make or revoke or alter her Will. She had previously made a Will, however this Will created uncertainties and failed to properly deal with her assets, namely the family farm.

The Court concluded that the mother acting on proper legal advice in the circumstances of the case would revoke the former will and give rise to the new will, as it dealt in a better way than the former will about how the family farm was to be held by future generations.

His Honour went on to say that there was evidence which demonstrated a long-standing history of family connection with the property. It was accepted that there was an undoubted intention on the part of the testatrix and each of her children that the property should remain for the benefit of future generations just as it has benefited past generations.

His Honour concluded that the mother lacked the mental capacity to make a Will and determined that she was unlikely to reacquire the testamentary capacity in the future.

The Court granted leave for the application and ordered that the proposed Will be made on her behalf.

Sadler v Eggmolesse [2013] QSC 40

A mother made an application to the court that a court ordered Will be made for her son. Her son had sustained a serve brain injury at birth which led to him suffering significant mental and physical impairments. A claim was brought against the State of Queensland and the medical practitioner which resulted in being awarded a significant amount of compensation. The public Trustee of Queensland on behalf of the son bought suitable accommodation on Trust for the Son, in which the son, his mother and siblings reside.

Unfortunately the marriage between the mother and father had broken down.

The son’s primary fulltime carer was his mother. She has been unable to maintain employment.

The issue was that as a result of the compensation the son had a substantial estate and did not have a Will and would never be capable of making a Will.

If no Will was made for the son his estate would be divided 50/50 between his mother and father, even though the mother was the primary carer and financial supporter of the son.

The court found that looking at the son’s position if he were able to understand the way in which his mother has cared for him and devoted her life to him since birth, he would want her to benefit under his Will. The Court also concluded that given the son’s close relationship with his brothers he would want them to benefit under his Will and that a gift to a charity which was significant help him and his family was also appropriate.

The court granted leave for the application and ordered that the proposed Will be made for the son.