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Statutory Wills 

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) sets out the requirements for a valid will, one of which is that the testator, being the person making the will, has the mental capacity to make the will. This is 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 the position in Western Australia differs slightly from the position in the other states and territories.

 

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:

  1. lacks the testamentary capacity to make a will;
  2. is still alive; and
  3. is at least 18 years of age.

One important difference between Western Australia and other jurisdictions is that in WA a statutory will cannot be made for a person under 18 years of age. In contrast to this, a Queensland court made a statutory will for a 12 year 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 provided no support to her and that he did not maintain a relationship with his daughter.

 

What the Court considers:

Upon an 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;

 

  1. the suggested will is one which could be made by the person concerned if the person was not lacking testamentary capacity;

 

  1. the person making the application is an appropriate person to make the application; and

 

  1. the people who might reasonably expect to benefit from the estate have been notified that the application has been made.

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

 

What are the benefits of obtaining a statutory will?

A statutory will enables people to make a will for a family member who has suffered a stroke, develops dementia or has some other incapacity that reflects the family member’s wishes.

An example might be that a husband and father of 2 suffers a stroke and loses his mental capacity having never made a will. He later dies, having been unable to make a will since his stroke.

If a person dies intestate, (without a will) in Western Australia, their entire estate does not automatically go to their spouse. Consequently, the family home and other assets might need to be sold, which might make it difficult for the surviving spouse to live. Under the Wills Act, the wife from the above example could make an application to the Court while her husband was still alive, requesting that a statutory will be made providing the entire estate to her.

The benefits of having a statutory will created include:

  1. the will can be structured to reflected the person’s wishes;

 

  1. the will can be more tax effective than if the person was to die intestate; and

 

  1. people can 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).

 

How likely is the Court to grant a statutory will?

The threshold for a statutory will application to be successful in Western Australia is quite high. The 2017 case of R v J (initials used to protect the parties’ identities) was the first West Australian case in which the Court considered the requirements of the Wills Act in significant detail.

Section 41 of the Wills Act requires that applicant must provide:

  1. an estimate of the nature and extent of the assets and liabilities of the person concerned;
  2. any evidence available as to the wishes of the person concerned; and
  3. evidence that the applicant has made reasonable enquiries into the likelihood of an application being made.

In this case, the Court declined to uphold the application for a number of reasons, one of which was that there were large inconsistencies as to the assets and liabilities making up J’s estate. The Court also found that the proposed will, although agreed to by all beneficiaries, provided disproportionate benefit to some of the beneficiaries.

 

 

Conclusion

If you have a relative who is over the age of 18 and suffers from a mental disability or incapacity, it may be beneficial to apply for a statutory will to be made on their behalf. Situations in which a statutory will may be useful include when someone is put into a coma or, for any other reason, they are unlikely to ever regain testamentary capacity.

If you require any legal advice on making application for a statutory will, you can contact Lynn & Brown Lawyers on 9375 3411. Our team can provide you with relevant legal advice and help you prepare an application for the court.

About the authors:

This article has been co-authored by Aaron Plenderleith and Steven Brown at Lynn & Brown Lawyers.  Aaron is a Perth lawyer and practices in the areas of criminal law, commercial and Wills and Estates.  Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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