We have written previously about making and challenging Wills, including the need for Will-makers to have ‘testamentary capacity’, and to know and approve of their Wills.
We now look at Statutory Wills, an emerging area in Estates Law. Under certain circumstances, courts are empowered to make, alter or revoke a Will on behalf of a person lacking testamentary capacity.
We begin this two-part series with a recap:
Testamentary Capacity
For a Will to be valid, the Testator (maker) must have had testamentary capacity when the Will was made.
Testators have testamentary capacity where:
- They understand the nature and effect of making a Will;
- They appreciate the extent of the property they are disposing of in their Will;
- They understand the moral claims of potential beneficiaries (that is, those people the Testator reasonably should provide for under the Will); and
- They do not have a “disorder of the mind” that affects how they dispose of property.
(Banks v Goodfellow (1870) LR 5 QB 549 at 565, per Cockburn CJ)
Minors and Testamentary Capacity
In NSW, the minimum age for making a Will is 18 years old. Minors, excluding those who are married or contemplating marriage, lack the legal capacity to create valid Wills Under the (Succession Act 2006 (NSW) s 5).
Lack of Capacity
What happens if a Testator loses capacity, or never had capacity? They become incapable of creating a valid Will, and unable to amend or revoke a Will created when they had capacity.
If someone dies without a Will, their Estate is distributed according to Intestacy rules (Succession Act 2006 (NSW) Chp 4). If they made a Will, their Estate is distributed according to it (Chp 3).
Outdated Wills and Intestacy rules often produce unjust results, not reflecting the Testator’s true intentions. Family members may not receive their fair share, leading to Family Provisions Claims (Chp 2).
Statutory Wills
Statutory Wills may rectify these problems.
Applications are made to the NSW Supreme Court for a Statutory Will to be made for a living person who lacks testamentary capacity. Applications for the creation, amendment or revocation of a Will are made after obtaining the Court’s permission (Succession Act 2006 s 18-19).
For an application to be successful, the five elements in Succession Act s 22 must be satisfied:
- The Testator must be, or is reasonably likely to be “incapable of making a Will”;
- The proposed Will (or proposed alteration or revocation) is, or is reasonably likely to be “one that would have been made by the person if he or she had testamentary capacity“;
- It is appropriate to make the Statutory Will order;
- The application was made by an “appropriate person“; and
- Persons with “legitimate interest in the application” (generally family members) should be allowed representation in the Statutory Will case.
A Statutory Will order will not be made if the incapacitated person is deceased.
Next Time
Next time, we look at different types of Statutory Will cases, and how the court makes a decision.
Get Advice
If you need legal advice about making a Statutory Will application, or any other Wills and Estates matter, Martin Bullock Lawyers can help. Call Greg or Jacqueline on (02) 9687 9322.