IT’S NEVER TOO LATE TO MAKE A WILL
It is widely known that a person must have the requisite “capacity” to make or change his or her own Will.
A person may lose capacity, but their circumstances will continue to change. What if their old Will is no longer appropriate, but they don’t have capacity to change it themselves?
Until a few years ago, there was little we could do.
The Succession Act now offers a solution: the Court can step in and make a new Will or alter an existing Will for a person who is still alive but does not have capacity using a “Court authorised” or “Statutory Will”.
The Court must be satisfied that the person would have made that alteration if they could and it is appropriate in all the circumstances.
Children can not make a will until they’re adults. However, it may be necessary for a child to make a will. This is typically when they have a substantial estate and it is appropriate that it go to their parents, a parent or sibling depending on the circumstances.
If a disabled person has never had capacity to make a will it may be appropriate they have a will. A court can make a will when, on their death, it would be inappropriate for their estate to fall under the intestacy rules, perhaps to someone who caused their disability.
Merthyr Law is a leading estate planning firm in Queensland with proven experience with Statutory Will Applications through the use of more complex estate planning strategies such as testamentary trusts. Merthyr Law acted in the leading Australian decision in GAU v GAV a decision of the Court of Apeal comprising three judges.
We have worked on a number of statutory will cases with the leading Australian barrister in this area, Richard Williams who is co-author of the text book on the topic, Statutory Will Applications: A Practical Guide.
Given our depth of experience in this area, we are able in some cases to provide a fixed quote for a Statutory Will Application, so you don’t have any nasty surprises.
STATUTORY WILLS ENQUIRY
To find out more about statutory wills please read our FAQ’s below.
To arrange an initial flat fee $300+gst document review meeting please fill in the form or call the office on 07 3029 1600.
Statutory Will FAQ’s
The person making the application for a Statutory Will must be the appropriate person to make that application. The Court will consider the nature of that person’s relationship with the person for who the application for the Statutory Will is being made. The following are examples of people who have been found by the Court to be appropriate for making an application:
- A parent of a child who is the carer and has a close relationship with the child
- Relative who have a relationship with and a significant interest in the welfare of the person concerned
A Statutory Will is a Will made for a person by a Court in circumstances where the person does not have the required level of mental capacity to independently make a valid Will for themselves.
A Statutory Will application must be made while the person who lacks mental capacity is still alive.
Some people do not have the required level of mental capacity to understand all that is necessary to making a Will because of conditions such as dementia, intellectual disabilities or illnesses that cause delusions of the mind.
A Statutory Will is a Court ordered new Will or amendment to a Will for those who don’t have capacity to make a Will themselves.
They can be made for persons who have never had capacity, for example those injured at birth or who are minors, or they can be ordered for those who have lost capacity through an accident or ailment.
With an ageing population and ever increasing life expectancy, the prevalence of dementia causing loss of capacity is on the rise. Many loved ones don’t realise that the incapacitated person is not stuck with the cards they are dealt with when they become incapacitated, but that their estate planning can continue to be updated through the use of Statutory Will Applications.
Applications are usually made by spouses or family members, although this is not a requirement of the succession legislation. An application can be made by someone who has a close relationship with the person, an attorney or a trusted advisor.
If the testator has never made a Will and no Statutory Will has been ordered, that person is called an “intestate” (meaning dying without a Will). The laws of intestacy in Queensland provide that an intestate’s person’s estate is distributed as follows(click image to enlarge):
However, if the distribution on intestacy leads to a result that is not fair or not likely to be what the testator would have wanted had they had capacity, it may be worthwhile applying to the Court for a Statutory Will.
The Court must be convinced that there is a fairly good chance that the Will is one that the Testator would have wanted had they had capacity. If there is a dispute as to what the Testator would have wanted, the Court decides that dispute.
- For a severely disabled son who had received a sizeable compensation payment so that his inheritance went to his mother who cared for him rather than his estranged father who would have received half under the rules of intestacy: RKC v JNS  QSC 313
- To change a Wife’s Will which benefited her husband who had tried to kill her thus causing the incapacity: De Gois v Korp  VSC 326
- For a person who had no relatives and inheritance would have ended up with the Crown under the rules of intestacy: Re Fenwick; application of J R Fenwick  NSWSC 530
- To help avoid an unfair result and possible elder abuse where a 92 year old lady in a nursing home married a 42 year old employee (thus revoking her existing Will) without telling her children. In this case the Court ordered the 92 year old existing Will giving her estate to her children remain on foot.
- To help ensure the inheritance was protected from financial risk and creditors by altering the Will to include Testamentary Trusts – RE Matsis  QSC 349
- To help ensure the mother’s inheritance didn’t end up with the daughter-in-law who had recently separated from the mother’s son and had commenced proceedings for property adjustment in the Family Court. This was done by altering the Mother’s Will to include a Testamentary Trust for the son.
- To fix defects in a mother’s Will who had dementia: Doughan v Straguszi  QSC 295
to resolve a potential estate/ family provision dispute whilst incapacitated parent is still alive by changing the Will and relinquishing rights to make a Family Provision Claim – Re RB, A Protected Estate Family Settlement  NSWSC 70
Merthyr Law are a leading estate planning firm in Queensland.
Merthyr Law has applied to develop the use of Statutory Will Application through the use of more complex estate planning strategies such as testamentary trusts to help protect inheritances from spousal attack. GUA v GAV is the leading Australian decision in this area as it was determined by the Court of Appeal comprising three judges.
We are delighted to announce that we have secured a close working relationship with the leading Australian barrister in this area, Richard Williams who is also the co-author of the preeminent text book on the topic Statutory Will Applications: A Practical Guide..
Richard recognises Merthyr Law’s expertise in this area and through working on matters together are able to work co-operatively and efficiently. It is because of this close working relationship, that Richard and Merthyr Law are willing to provide fixed price fees for Statutory Will Applications so you don’t have any nasty surprises.
By using experts in the field, Applicants can rest assured that they are completely prepared for any Application and only Applications with high prospects of success will be pursued.
The costs of the Application are paid from the estate of the incapacitated person unless the Application was unreasonable. By using Merthyr Law and Richard Williams for the Application, only Applications with high prospects for success would be pursued.
Merthyr Law acted for the Applicant in this matter with Richard Williams and Walter Sofronoff Acting as counsel. The names have been de identified to protect the privacy of the family.
- The mother had been incapacitated for a long period
- The mother had received “old money” from her parents
- Under her Will, the “old” money was gifted to her children, not her husband
- Her son had been married for almost 20 years and had young children
- The son’s marriage had broken down and property settlement proceedings in the Family Court had been undertaken
- The husband was concerned that his wife could die at any time
- If the wife died the son would receive a $5m inheritance. The asset pool in the Family Court matter was around $1m
- If the mother died the property pool would have been around $6m.
- Cases such as Singerson & Joans  FamCAFC 238 show that inheritances received post separation form part of the property pool subject to division by the Family Court and as such it was likely that much of the “old money” could end up with the daughter-in-law in the property settlement proceedings
- The husband applied and the Court of Appeal ordered a variation to the wife’s Will, thus achieving the wife’s stated purpose of keeping the old money in the family.
- Mother’s estate ordered to pay the parties costs
Paramount test was:
(i) this jurisdiction makes orders to protect the incapacitated person; and
(ii) it is what the mother would have done if she had capacity
- Parents are always free to alter their Will to ensure their ex son-in-law or daughter-in-law do not benefit
If you think that you know a loved one for whom a Statutory Will Application could be appropriate, please contact us on the details below.
We will arrange for one of our experienced lawyers to go through your circumstances and complete a survey so that we can advise whether a Statutory Will Application may be suitable for you and provide you with a fixed price quotation for making a Statutory Will Application.
We also have financiers at hand who can help you finance our legal fees through payment by monthly instalments until such time as our fees can be recovered from the incapacitated person’s estate.
Yes. Minors sometimes are recipients of sizeable inheritances or personal injury awards. Minors do not have capacity to make a Will, and as such, if a minor dies the rules of intestacy apply, meaning that the minor’s inheritance is usually split equally between the surviving parents. If a person believes that the rules of intestacy lead to an unfair outcome, such person can apply to the Court for the Court to order a Statutory Will for a person.
Yes. This very circumstance happened in the case of RKC v JNS  QSC 313. In that case, the son was severely disabled from birth and was the recipient of sizeable personal injury compensation. The mother was responsible for the care of the disabled child and the father had little to do with the mother or the child. If the disabled childe died without a Will, the inheritance would have been split equally between the father and the mother, despite the father having little to do with the child. In this case, the Court found that it was appropriate to order the disabled child to have a Statutory Will leaving all of his inheritance to the mother.
Yes. At risk business people wish to avoid accumulating wealth in their own name, as litigation may result in such wealth ending up with creditors (see brochure gift and loan back).
Testamentary Trusts are often used as a vehicle to ensure that inheritances are protected from beneficiaries’ possible creditors and bankruptcy. In RE Matsis  QSC 349 the Court upheld an application by three sons who were financially at risk for their incapacitated mother’s will be changed to one containing a testamentary trust.
Also, testamentary trusts can be used as a vehicle to help protect inheritances from the reach of the Family Court – see Family Court Protection Spectrum. Merthyr Law successfully made the first application to the Court for an incapacitated mother’s Will to be changed to a Will containing Testamentary Trusts in order to ensure that the mother’s inheritance did not end up with the daughter-in-law who had recently separated from the son and was involved in Family Court Property proceedings – see GUA v GAV  QCA 308.
Sometimes everybody knows that there is going to be estate litigation between the children once the parents pass away. In circumstances where the surviving parent is incapacitated, Statutory Will arrangements, combined with a Deed of Family Arrangement, where the beneficiaries agree not to challenge the Will can be used as an effective means to help ensure there is a fair distribution between the children and to minimise the risk of estate litigation after the parent’s passing. NSW is the only jurisdiction that enables a person under section 95 of the Succession Act 2006 to release that person’s right to seek a Family Provision Order. As such, in NSW, it is possible for an incapacitated Will to be changed and for potential claimants to relinquish their right to make a Family Provision Claim in the one application – see Re RB, A Protected Estate Family Settlement  NSWSC 70.