What is a Statutory Will? July 7, 2021

A Statutory Will can help resolve difficult estate issues, but first you’ll have to convince a Court to exercise its power

Statutory Wills are an excellent way to sort out Wills and Estate issues where the Will-maker lacks capacity to make a Will. But first it’s necessary to understand when Statutory Wills are used, who can apply for a Statutory Will and how to apply.

What is a Statutory Will?

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.

When a person dies without a Will, they have died intestate and special laws apply, known as intestacy laws. These laws say how a deceased person’s estate will be distributed.  In some situations, this can lead to injustices. A Statutory Will can be useful to ensure a person’s property is divided and distributed in the way they would have wanted.

When are Statutory Wills used?

Statutory Wills can be used in a wide range of circumstances. For example, in Victoria they have been used to:

• Remove a de facto partner from a previous Will because the relationship had broken down before the person had an accident leaving them incapacitated
• Remove a husband from a previous Will because he had been charged with the murder of the incapacitated person
• Create a Will for an incapacitated person in order to leave a greater share of her estate to her nephew by marriage who cared for her
• Fix a Will where there were some technical problems preventing the Will from operating in the way intended
• Fix a Will where the property to be given away in the Will was no longer part of the Will-maker’s estate at the time of their death (this is known as ademption)

Who can apply for a Statutory Will?

Victoria laws allow any person to make an application for a Statutory Will. Generally, applications are made by:

• Family members; or
• Other potential beneficiaries (for example, carers or friends); or
• Administrators, guardians or solicitors involved in the incapacitated person’s affairs

A person who makes an application is known as an applicant. There is no obligation on the applicant to include the incapacitated person in the process or to provide them with any information.

How to apply for a Statutory Will

It is extremely important to carefully consider whether to bring an application for a Statutory Will. We recommend seeking legal advice from experienced Statutory Wills lawyers. Our team can carefully review your case and provide you with specialist advice. Contact us to find out more about Statutory Wills in Victoria.

DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can receive from marshalls+dent+wilmoth and other relevant experts.