What is a Statutory will?
When is there a need for a Statutory Will?
Types of applications have included:
(a) a person who once had capacity and has formed relationships, and who:
– had expressed their intentions in making a Will and even named their beneficiaries without documenting their intentions;
– had developed dementia and their personal circumstances had changed such that the laws of intestacy do not provide for the most appropriate people in the person’s life;
– had suffered a brain injury and is awarded a large compensation payment;
(b) a person who:
– has no direct family and who will die intestate resulting in their assets going to the State Government.
– has always had a severe intellectual impairment and may inherit a large sum of money from their family, but cannot manage their financial affairs or make appropriate life decisions.
Who can apply for orders authorising a Statutory Will?
What does the Court take into account when deciding whether to approve a Statutory Will?
(a) the person concerned is suffering from incapacity;
(b) the proposed will, 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, and
(c) it is or may be appropriate for the order to be made, and
(d) the applicant for leave is an appropriate person to make the application, and
(e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.
Who pays the costs of the application for a Statutory Will?
Are Statutory Wills different to normal Wills?
Case Study
At the time of the application in the case of Re Charles, ‘Charles’ was an 11 year old boy who had suffered brain damage at the age of 4 months allegedly from being shaken by one or both of his parents. He received $50,000.00 compensation under the Victim’s Compensation Scheme which was to be held in trust until he turned 18 years of age.
Given the allegations against the parents, Charles was taken from his parents and parental responsibility given to the Minister for Family and Community Services.
As Charles was only 11 years old, he did not have a Will. Under the laws of intestacy his parents, as the next of kin, would stand to inherit his estate if he were to die before them.
In the circumstances the Minister viewed this outcome as entirely inappropriate and made application under section 18 of the Act for authorisation of a Will on which Charles’s sister would benefit from his estate and in the event she did not survive Charles then for the estate to be divided between two charities for disabled children.
The court was satisfied Charles would never regain testamentary capacity and although his parents were notified, they chose not to intervene in the application. The court approved the application and the terms of the Statutory Will.