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Estate & Succession PlanningStatutory WillsSteve GrantWills & Estates

STATUTORY WILLS – A New Legal Avenue After Amendments To The Succession Act

By January 19, 2016December 28th, 2022No Comments

Queenslanders could be missing out on millions because they’re in the dark about important changes to the law of wills and succession, in particular Statutory Wills.

Steve Grant, Merthyr Law’s Director and estate and succession law specialist said it was worrying that the majority of Queenslanders seemed unaware that amendments to the Succession Act in 2006 completely changed the way courts can deal with wills and estates.

People who could or should have contested a will have not made use of the legal avenues available to them because they simply didn’t know the law had changed.

The most significant change was the expansion of the Supreme Court’s jurisdiction, allowing it to authorise the making, alteration or revocation of a will on behalf of a person who lacks the capacity.

The Queensland Supreme Court handled about 25 statutory wills and estate matters last year. I expect that would increase if more people understood their rights.

The law changes effected a range of areas:

  • The formalities required for making, altering and revoking wills
  • Making of wills by minors or people lacking capacity, and
  • The effect of marriage and divorce on wills.

Three examples of how the changes had altered peoples’ inheritances:

In one case, the testator had been diagnosed with acute dementia and suffered a severe stroke. Her diagnosis was terminal and her life expectancy short. She had made a Will early in her life leaving part of her estate to her son directly in his own name. Her husband was concerned that her Will was no longer appropriate and may result in her inheritance being lost to unintended recipients. On the husband’s application, the Supreme Court recognised that the testator had always intended that her inheritance remain with her children and grandchildren. The Will was amended directing the son’s inheritance to a discretionary testamentary trust for the benefit of him and his children.

The new law is also intended to benefit minors, who would ordinarily not be able to make a Will.

For example, a child who suffered significant injury from a motor vehicle accident was to receive a large cash settlement. At the age of 16, he had been living with his mother since the accident, the father having abandoned the family. The child strongly wished that his father not receive any of his settlement if he passed away before he turned 18. The Supreme Court acknowledged his wish and made a Will on those terms.

Similarly, the Court has made a Will for a man with a permanent disability with two young children. His parents chose to give up their jobs to care for him and his family. The man did not have a Will. The Court heard that he would have wanted some of his estate, including the cash settlement he received following the accident that resulted in his disability, to go to his parents who were caring for him, his sister, and for the benefit of his children on trust until they were mature enough to handle the money themselves.

Before the amendments to the law, none of these people would have been able to change their Will, resulting in their estate going to unintended and even inappropriate beneficiaries. The new law fills a significant gap that existed in Queensland.

For more information on statutory wills and estate matters, contact the office on (07) 3252 5044 to arrange an appointment with Steve Grant.