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What is a Statutory Will?

A statutory Will is a Will that is made on behalf of another person in accordance with a court order. In Western Australia the Wills Act 1970 (WA) (“the Wills Act”) sets out the requirements for a valid Will. One of the requirements to make a valid Will is that the testator, being the person making the Will, has the mental capacity to make the Will, also known as testamentary capacity.

If a person does not have the mental capacity to make a Will, then an application can be made to the Supreme Court of Western Australia to have a statutory Will created on their behalf.

The concept of a statutory Will is a relatively new concept at law and there has not yet been a reported case on it in Western Australia. There has recently been a reported case in Queensland (where the Western Australian law was derived from). The Queensland Supreme Court made a statutory Will for a 12 year old girl who suffered from a severe mental disability and lacked testamentary capacity. The court ordered that a Will be made that would exclude the girl’s father from her estate on the basis that he had provided no support to her and that he did not maintain a relationship with his daughter.

Requirements under the Wills Act

Under section 40 of the Wills Act, a person can make an application to the court to have a statutory Will created if the person whose Will is being proposed lacks the testamentary capacity to make a Will, the person is still alive and has reached 18 years of age. One important difference between Western Australia and other states is that a statutory Will cannot be made for a person under 18 years of age in Western Australia.

Upon the application being made the court will only make an order if it is satisfied that:

  1. The person concerned is incapable of making a valid Will;
  2. The suggested Will is one which could be made by the person concerned if the person was not lacking testamentary capacity;
  3. The person making the application is an appropriate person to make the application; and
  4. Those people who might reasonably expect to benefit from the estate have been notified that the application has been made.

An appropriate person can include a parent, child or any other person who would be likely to receive an inheritance from the estate.

What are the benefits for obtaining a statutory Will?

The ability of the Supreme Court to make statutory Wills allows for those families who have a child, who is over the age of 18, or a parent who suffers a stroke, develops dementia or some other incapacity to still make a Will that could make provisions that would reflect their wishes.

An example might be that a husband and father of two children suffers a stroke and loses his mental capacity having never made a Will. He dies two years later having been unable to make a Will since his stroke.

If a person dies without a Will in Western Australia and they have a wife and children, then the entire estate does not automatically go to the wife. The estate would be divided by giving the first $50,000.00 to the wife and the balance one third to the wife and two thirds to the children. The consequences of this could be that the family home and other assets might need to be sold, which might make it difficult for the surviving wife. Under the Wills Act, the wife, whilst the husband was still alive, could make an application to the Court requesting that a statutory Will be made for a more equitable resolution.

The benefits of having a statutory Will created include:

  • The Will can be structured to reflected the person’s wishes;
  • The Will can be more tax effective than if the person was to die intestate (without a valid Will); and
  • Certain people could potentially be included in an estate (such as a grandparent who cares for a person with disabilities) or excluded (such as a parent who provides no support and is not in contact with the person in question).

Conclusion

People should consider making an application to have a statutory Will put in place if they have a child or another relative who is over the age of 18 and who suffers from a mental disability or incapacity. This could also include someone who has a stroke, has dementia or any other reason where it is unlikely that the person will ever regain their testamentary capacity.

If you require any legal advice on whether you should make an application for a statutory Will you can contact the team at Lynn & Brown Lawyers on 9375 3411 who can provide you with the relevant legal advice and help you prepare an application for the court.

 

About the author:

Aaron Plenderleith is a lawyer at Lynn & Brown Lawyers.  Aaron was recently admitted to practice law in Western Australia and specialises in legal writing, legal research, criminal law and employment law.

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