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Statutory Wills

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08 Nov 2018
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While they are often a final resort, statutory Wills should always be considered when looking at estate planning options.

As Australia’s population ages, the number of people who will be affected by dementia is a growing issue, and as well as the personal and emotional impact of dementia on both the individual and their family, there is also a practical consideration. Often people suffering from dementia may not have a Will, or their personal circumstances have changed making their current Will no longer valid.

Thankfully, even when a person no longer has capacity to make or update a Will, there are things that can be done to help.

Each state in Australia allows for statutory Wills, which can be approved by the relevant Supreme Court for signing on a person’s behalf.

statutory wills, lady laughing

This is welcome news for families and loved ones looking to amend Wills that clearly do not reflect the person’s wishes.

In order for a statutory Will to be made on someone’s behalf, the Court must be satisfied that they lack testamentary capacity.

The Court will also decide whether the proposed Will made is what the person would have wanted – not the people proposing the Will.

Dementia is not the only reason for needing a statutory Will. A recent case involved a young child who had severe physical disabilities as a result of problems at birth.

He had received $3.2 million in damages against the hospital which had been used to purchase a house for him, his mother and siblings, as well as produce an income.

His father had had little to do with him since he was born, and his mother was his primary carer.

The child was about to undergo serious surgery and an application was made for a statutory Will to be made on his behalf, as he had never had capacity to create his own Will.

The Court eventually approved a Will that left the majority of the estate to the mother and siblings, with a small portion allocated to the father.

Without the statutory Will, the father would have been able to claim part of the family home and the funds, which would have seriously affected the other children and their mother.

While they are often a final resort, statutory Wills should always be considered when looking at estate planning options.

If a person has lost capacity, or indeed, never had capacity, it is entirely appropriate to look at whether a statutory Will can be made.

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For more information contact

Anna Hacker

National Manager
Estate Planning

AHacker@australianunity.com.au

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