Making a Will Without Capacity

Making a Will Without Capacity – Queensland’s Statutory Will Scheme

Testamentary capacity refers to the mental state required to execute a valid Will, and extends to understanding the nature and effect of the document, being aware of the property that forms part of the estate, understanding potential claims against the estate, and being free of medical diagnoses that could affect capacity or cognition. Where these elements are not fulfilled, the Queensland Succession Act (1981) allows the court to authorise a Will to be made for a person without testamentary capacity. This is known as a Statutory Will.

To make a Statutory Will application, an applicant can apply on behalf of a person without testamentary capacity (referred to in the legislation as the ‘relevant person’) if they are deemed to be an appropriate person. Whilst the courts have accepted this to include a spouse or family member, there are cases that suggest that friends, carers, and lawyers may be successful applicants. It is the applicant who will present a proposed draft of the Will to the court for approval.

Critically, the court must be satisfied that the proposed Will is one that the relevant person would have made if they had capacity, and that adequate steps have been taken to allow representation of other persons with an interest in the application. The unique circumstances of each individual are considered, along with the relationships they may have already formed to determine who may have an interest, the correct beneficiaries, and consequently the correct entitlements to be given in the newly drafted Will.

Statutory Wills are a particularly unique area of succession law as the courts will intervene in the creation of a Will, which is usually a private event. However, it serves an incredibly practical purpose where the alternative may be dying without a Will. In that instance, the deceased’s estate would be distributed according to the rules of intestacy, and not according to a Will.

In cases where the relevant person is affected by cognitive disorder, lives with disability affecting capacity, or otherwise does not possess the required testamentary capacity to make a Will, Queensland’s Statutory Will scheme provides practical means to have a person’s wishes acknowledged.

Madeline Crnkovic, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.