What is a Statutory Will?

The Supreme Court of Queensland handed down a decision in which a statutory will was made for a 12-year-old girl.

Section 21 of Succession Act (Qld) gives the court discretion to authorise a will to be made, altered or revoked for a person without testamentary capacity. Such a will is called a statutory will. In most cases, this means that the person who needs the will has a mental illness or is unable to create a will by themselves. If a child comes into a fortune, they are also able to apply for a statutory will to keep their assets safe.

What is Testamentary Capacity?

In order to make a will, in addition to being over the age of 18, a person must have testamentary capacity, or:

have sound mind, memory and understanding
full knowledge and approval of what is in the will
not be subject to undue influence

The person who applies to make a will on behalf of the person who does not have testamentary capacity must also fit in certain criteria. They can be a spouse or primary carer for the person, or they can somehow have interest into the person’s affairs. In some cases, they can be the Administrator, someone who has been appointed by the Queensland Civil and Administrative Tribunal and is in charge of the person’s affairs.

The Case

In 2014, the mother (RC) of a severely disabled girl (SC) applied to the court to have a statutory will made on behalf of SC, who was 12 years old at the time.

SC was born by caesarean section due to foetal distress and suffers from severe spastic quadriplegic cerebral palsy resulting from the birth. She has also been diagnosed with mental retardation and other debilitating conditions.

A personal injuries lawsuit for medical negligence was brought on SC’s behalf by her mother and damages of $1.375 million were awarded. SC had lived with her mother and maternal grandmother, both of whom had been her primary caregivers but had a poor relationship with her father, JS.

With SC now in possession of a large estate due to the damages award, her mother petitioned the court to make a will on behalf of SC. SC cannot make a will because she is a minor and lacks testamentary capacity. However, if she were to die without a will, intestacy laws would allow her estate to divided equally between her mother, RC and her father, JS. Because her father had not cared for her or contributed financially for her care, the court was asked to make a will that recognised the girl’s mother and grandmother as the beneficiaries of her estate.

The Supreme Court approved the request and authorised the will to be made on behalf of SC. Requests for statutory wills are becoming more common as our population ages and cases of dementia become more prevalent. However it is a complex area of the law which requires specialist legal advice. When applying for a will to be made, you must make an application. Statements must be made to the Court to provide evidence that the person does not hold the capacity to make a will for themselves. This can be documents to prove their age or documents to prove their medical condition. In SC’s case, documents of her financial position would have also had to been provided. The Court will also discuss what may occur if the person were to die without a will. For SC, her father would have received some assets when he was not heavily involved in her life. The person applying on the behalf of the person without testamentary capacity must also provide reasoning as to why they are an appropriate person to create the will.

Scenarios for Applying for a Statutory Will

There are various reasons as to when it might be appropriate to apply for a statutory will, including:

when someone has never made a valid will and now does not have the capacity to do so
when a will is outdated and the testator has lost the capacity due to illness to make changes
when someone under 18 receives a large compensation and does not have the testamentary capacity to write a will that would more fairly reflect their circumstances where normal intestacy rules do not
a testator’s current will could be structured to be more tax-efficient
there is a technical defect in the person’s will which needs rectifying

At Estate Battles, we are experienced in dealing with complex wills. To speak to one of our estate lawyers, please contact us today. We offer a free, 10-minute phone consultation.

What is a Statutory Will?