They are often a final resort, however Statutory Wills should always be considered when assessing estate planning.
As Australia’s population ages, the number of people affected by dementia and other cognitive conditions is on the rise1. In addition to the personal and emotional impact of dementia on both the individual and their family, there is also a practical consideration in regards to personal Wills and estates.
Thankfully, when a person no longer has capacity to make or update a Will, there are things that can be done to help ensure all necessary considerations have been made. Each state in Australia allows for Statutory Wills, which can be approved by the relevant Supreme Court for signing on a person’s behalf.
In order for a Statutory Will to be made on someone’s behalf, the Court must be satisfied that they lack testamentary capacity. This is welcome news for families and loved ones looking to amend Wills that clearly do not reflect the Will holder’s wishes.
The Court will also decide whether the proposed Statutory Will is what that person would have wanted – should they have had capacity to decide themselves – and not just the people proposing the Will.
Who needs a Statutory Will?
Dementia and other cognitive conditions are not the only reason for needing a statutory Will. A recent case2 involved a young child who had severe physical disabilities as a result of complications at birth. He received $3.2 million in damages against the hospital which had been used to purchase a house for his mother, himself and siblings to live in, as well as provide an income.
The child’s father had very little to do with the family since this child’s birth, with the mother acting as the 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 his mother and siblings, with a small portion allocated to the father.
Without the statutory Will in place, the father in this case would have been able to claim part of the family home and the funds, which would have seriously affected the mother and other children.
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 never had capacity it is entirely appropriate to look at whether a statutory Will can be made.
2A Limited v J  NSWSC 736