Statutory Wills in Queensland

My Family member needs a Will but doesn’t have capacity to make one – Statutory Wills in Queensland.

Generally, a person needs to be over the age of 18 years, and of “sound mind” to make a valid Will in Queensland. But what if a person never had, or has lost capacity to make a new Will or update an existing one?

The Law

Section 21 of the Succession Act 1981 (QLD), empowers the court to make, alter or revoke a will for someone without legal capacity. Relevantly, the court will only exercise this power if it can be satisfied that:

• The relevant person is alive, and lacks mental capacity;
• The person applying for the Statutory Will is an appropriate person; and
• Other people who may expect to benefit from the Will have been notified of the Application; and finally
• The proposed will, alteration or revocation is one that the deceased person would have made if they had capacity.

How should these requirements be met?

Medical evidence

In the first instance, the applicant must show that the relevant person is alive and lacks mental capacity. This is a matter for medical evidence from treating practitioners of the relevant person such as psychiatrists, general practitioners, and specialists. This isn’t to say that lay evidence (from friends and family) cannot assist the court, and in fact, evidence from those close to the relevant person has been preferred to a retrospective psychiatric assessment.

Appropriate Applicant

Secondly, the court will need to be satisfied that the person making the application is the appropriate person. This will depend on the specific case, but some examples of appropriate persons are:

• A long term spouse of the relevant person;
• A litigation guardian for a minor;
• A parent of a minor; or
• A sibling.

Notice

Thirdly, notification is to occur to allow any interested parties (family or friends of the relevant person) to object to the proposed Will if they feel that the relevant person would not make such a Will.

What they would have made

Finally, the court must be satisfied that the proposed Will is one that the relevant person would have made themselves. Of course, it is unlikely that the relevant person can give evidence on this issue, so the standard rules of evidence do not apply in this instance. Instead, an applicant can produce evidence such as:

• A prior Will of the deceased that suggests a certain testamentary intention;
• Opinion evidence of what they believed the relevant person would have done;
• Evidence of relationships that the relevant person had in their life; and
• Opinion evidence of who the relevant person would have provided for.

The weight of this evidence will of course be considered in light of the applicant’s proximity to the Deceased.

Interested party

Relevantly, there is no reason why an applicant cannot be a beneficiary under the statutory Will that is being sought, indeed this was the position of the long-term husband in Gau v Gav [2014] QCA 308.

A case example

The case of Re the Statutory Will of Colin [2023] NSWSC 294 is a recent example of a successful application for a statutory Will.

• The relevant person (Colin) was 95 years of age and suffered dementia and resided in an aged care home.
• He had been in a de-facto relationship with his spouse Valerie from 1974 until 2013 upon her passing.
• Colin’s 2003 Will appointed Valerie sole executor and trustee, and apart from some gifts to various organisations, left his entire estate to Valerie, without any gift-over clause, so by Valerie’s passing in 2013, the result would have been an intestacy.
• In 2013 Colin appointed Philip, (his step son and the Applicant) as his Enduring Power of Attorney and Guardian.
• Philip put into evidence that Colin told him when he was signing his Power of Attorney:

“Now that your mother has gone, you will get her share of my estate when I go.”

• Under the Intestacy rules, Colin’s next of Kin were his Nephews, with which he had very little involvement.
• From 2013 onwards as Colin’s mental and physical health declined (including Alzheimer’s and dementia diagnosis), Philip and his wife played an increasing role in caring for him, including visiting him, calling him and arranging for his meals and medical treatment.
• Philip applied to the NSW Supreme Court for a statutory Will for Colin.

The Statutory Will

Philip exhibited to the Court a proposed Will for Collin on the following terms:

In Ex. A, Colin revokes all former Wills and testamentary dispositions (Clause 1); appoints the Applicant as the sole executor (Clause 2); makes the same general and pecuniary legacies, including those previously made to charity (Clauses 3, 4 and 5); gifts the residue of the estate to the trustee and directs that after the payment of all funeral and testamentary expenses and other duties (Clauses 6 and 7), the residue of his estate be held for the Plaintiff absolutely, if he survives by 30 days (Clause 8). The proposed Will also provide details of how Colin wants his funeral and burial to be conducted (Clause 9).

The Court’s conclusion

Hallen J concluded that:

The Court has made an evaluative and intuitive judgment as to what, objectively, Colin would be reasonably likely to have decided, had he been capable of doing so, as to residue of his estate to be received by the person who appear to continue to have, the most to do with him, and who appear to have devoted care, support, and attention to him. In reaching the level of satisfaction in relation to these matters, the Court has had regard to the importance and gravity of the issues involved in this application. In all the circumstances, after considering all the available evidence and information, as has been made available, concerning Colin’s actual intentions, attitudes and predispositions in the past, by reference to what is known of his relationships, history, personality and size of the estate, I am satisfied that a Will that provides for the residue of his estate to the Plaintiff would be reasonably likely to have been one made by Colin if he had testamentary capacity.

Why Spend the money on a Statutory Will?

Applying to the Supreme Court for a statutory Will, even in the strongest cases, is a time consuming and costly exercise. Judges are asked to exercise a considerable judicial discretion, so they expect that the Applicant has dotted the “i’s” and crossed the “t’s” – that is to say, the evidence before them needs to be compelling and complete.

Despite this, the choice to spend money in the short term is often a wise decision for the following reasons:

• Ensures that the person’s wishes are followed – a statutory will is virtually beyond challenge, which gives the applicant peace of mind that the relevant person’s wishes will be exercised even after the death of both parties. Consider for example, an elderly person with dementia or Alzheimer’s misplaces their will (as often occurs). When their time comes, the Executor will be required to embark on the costly journey of seeking probate of the copy will as the original has been lost.

• Avoids intestacy – consider this: the relevant person has no relationship with their parents or children. Under the intestacy rules (were they to die without a Will or spouse), their estate would revert to those closest to them, which may not be their wish. In addition to this, under an intestacy, a party other than the appropriate person may apply for Letters of Administration, which provides an opportunity for wrongdoing.

• Protects vulnerable people – a statutory will can protect the relevant person from undue influence, elder abuse, or fraud as well as future beneficiaries that may stand to benefit from the Will.

• Saves the cost of a dispute—estate litigation is notoriously expensive in terms of legal costs and relationships lost. It can also be uncertain in terms of outcome.

How we can help you

Here at Rostron Carlyle Lawyers our team of estate lawyers are able to assist you and a loved one in all aspects of estate planning including making an application for a statutory Will where capacity has been lost.

Contact Michael Sing to discuss your options and book a conference.

The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.