08 Aug The Ins and Outs of Statutory Wills
What is a Statutory Will and how can it be of benefit?
A Statutory Will is a Will made by a Court on behalf of a person who lacks the mental capacity to make one themselves. Often people who suffer conditions such as advanced dementia, an intellectual disability or an illness that causes delusions of the mind will lack mental capacity.
In the absence of a Will, the laws of Intestacy prescribe how a deceased person’s Estate will be distributed. In some situations this can lead to injustices. A Statutory Will can be a useful device to ensure a person’s testamentary desires are fulfilled.
When may a Statutory Will be necessary?
Statutory Wills can be appropriate in a wide range of circumstances. In Victoria, Statutory Wills have previously been authorised to:
- remove a de facto partner from a previous Will because the relationship had broken down prior to the person’s incapacitating accident (Plowright v Burge  VSC 490)
- remove a husband from a previous Will because he had been charged with the murder of the incapacitated person (De Gois v KorpI  VSC 326)
- create a Will for an incapacitated person in order to leave more than half of the Estate to a nephew by marriage who was looking after her (Monger v Taylor  VSC 304)
- remedy a current Will where there were some technical defects preventing the Will operating in the way intended
- remedy a current Will where there was ademption (where a property bequeathed under a Will is no longer in the testator’s estate at the time of the testator’s death)
Who can apply for a Statutory Will?
In Victoria, The Wills Act 1997 allows any person to make an application for a Statutory Will. Generally, applications are made by family members, other potential beneficiaries (e.g. carers or friends) and administrators, guardians or solicitors involved in the incapacitated person’s affairs. There is no obligation on the applicant to include the incapacitated person in the process or to provide them with any information.
How we can help
It is extremely important that care be taken when considering bringing an application for a Statutory Will. Our Wills and Estate team are here to carefully review the facts of your case and provide you with specialist advice in relation to your prospects.