Statutory Wills

A Statutory Will is a Court ordered new Will or amendment to a Will for those who don’t have the 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. 

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: 

• Spouses 
• 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 make a Will because of conditions such as dementia, intellectual disabilities or illnesses that cause delusions of the mind.

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. 

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 [2014] QSC 313 (link: https://archive.sclqld.org.au/qjudgment/2014/QSC14-313.pdf) 
• To change a Wife’s Will which benefited her husband who had tried to kill her thus causing the incapacity: De Gois v Korp (link: http://www9.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2005/326.html) 
• 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 (link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2009/530.html?stem=0&synonyms=0&query=title%28fenwick%20%29&nocontext=1) 
• 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 [2012] QSC 349(link: http://www.austlii.edu.au/au/cases/qld/QSC/2012/349.html) 
• 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 [2013] QSC 295 
• To resolve a potential estate/ family provision dispute whilst the 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 [2015] NSWSC 70 

The costs of the Application are paid from the estate of the incapacitated person unless the Application was unreasonable.  By using Merthyr Law 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 [2014] 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 [2014] QSC 313 (link: https://archive.sclqld.org.au/qjudgment/2014/QSC14-313.pdf).  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 child 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 – Read our Brochure to find out more. 

Testamentary Trusts are often used as a vehicle to ensure that inheritances are protected from beneficiaries’ possible creditors and bankruptcy.  In RE Matsis [2012] QSC 349 (link: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2012/349.html)  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 [2014] 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 [2015] NSWSC 70.