The need for a statutory will or codicil arises in circumstances where a person does not have capacity to make a will or codicil themselves.

The Succession Act 1981 (Qld) (“the Act”) gives the Supreme Court the power to make or alter a Will for a person in circumstances where the person does not have testamentary capacity and is alive at the date of the order, and the terms of the proposed will are approved by the court.

When May A Statutory Will Be Required?

There are many different circumstances in which an application for a Statutory will may be appropriate and where courts have made orders in the past. For example:

• a person has dementia, and it is clear that their existing will is out of date and needs to be updated, but they lack the necessary capacity to make their own will,
• a person’s existing will includes a gift of their house to a particular beneficiary, but the person has since moved into a nursing home and the house has been sold. This gift may fail to take effect, and the named beneficiary may not receive any compensation for the loss of the gift, and
• a person suffers an injury at birth, and receives a large compensation payment. If a statutory will is not made, their estate will pass according to the laws of intestacy, which might not be appropriate in their particular case. For example, the child’s parents may have separated, and only one parent has acted as the child’s care-giver for a number of years and the incapacitated child is estranged from their other parent.

Who May Make A Statutory Will Application To the Court?

Any person can make an application to the court for a statutory will on behalf of another person. However, the court must be satisfied that the person applying is an appropriate person to make the application.

The following are examples of the categories of persons who have been found to be appropriate applicants:

• a spouse,
• a parent of an incapacitated child who is the primary carer and who has a close and enduring relationship with that child,
• the incapacitated person’s administrator who looks after that person’s financial affairs, and
• relatives who have a relationship with the incapacitated person.

What Is the Process For Making An Application for A Statutory Will?

A statutory will application is a 2 stage process:

Step 1: Apply to the court for permission (leave) to make the application

The first step is for the person to make an application to the court for permission to make a statutory will application. This step is intended to prevent an application from going ahead if it is frivolous or clearly unlikely to succeed.

The court may grant permission to make the statutory will application if it is satisfied of the following:

• the applicant is an appropriate person to make the application,
• there are reasonable grounds for believing that the person does not have testamentary capacity,
• adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the incapacitated person,
• the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person did have testamentary capacity, and
• it is or may be appropriate for an order to be made in relation to making a will or altering a Will for the incapacitated person.

Step 2: Make the statutory will application

If the permission (leave) of the court is granted, the second step is to make the actual application to the court. It will be necessary for affidavits to be provided to the court setting out relevant information such as:

• evidence of the incapacitated person’s lack of testamentary capacity,
• an estimate of the size and character of the person’s assets,
• a draft of the proposed will, revocation or alteration,
• evidence of the testator’s wishes,
• details of who would be entitled to the testator’s estate if the rules of intestacy applied, and
• whether it is likely that a family provision claim will be made upon the person’s death, and by whom (if these details are available).

The court needs to be satisfied that the proposed will is one that the person would likely have made if he/she were to have testamentary capacity.

As part of the process, the court will also expect the application to be served on those who may have an interest in the case. This includes people who would have an interest in the estate if there is no will.

Costs

If the statutory will application is successful, the legal costs of the application are generally paid out of the incapacitated person’s assets, although this is not always the case. Any costs order is at the discretion of the judge.

Case Examples

Re APB [2017] QSC 201

APB was an elderly gentleman of 91 years who had very substantial assets. His assets included a shopping centre which was operated under a joint venture agreement. His assets were estimated to be worth approximately $70m, accompanied by a monthly income of over $200,000.

APB’s litigation guardian made a statutory will application for an order authorising a Will to be made on his behalf. The parties to the case included the man’s 3 adult children, his joint venture partner, various friends of 50+ years, his trusted solicitor of long standing, 2 charities, an estranged grandson, and various “new friends” including a Gold Coast real estate agent, her husband and a solicitor.

APB had made 4 wills over a period of 14 years and then 3 wills in one year. The last 3 wills were made after APB’s “new friends” befriended him in 2012.

At one stage, APB was in hospital when some of his “new friends” removed him from hospital without telling nursing staff or his attorney of their actions. They took him to a lawyer close to the hospital with the purpose of having a new will made. A will was not made so they took him to another lawyer where a will was made in their favour for more than 50% of APB’s estate.

Justice Applegarth ordered a statutory will which included pecuniary legacies to APB’s adult children, an ex-nuptial grandchild, several old friends including a former brother-in-law, and the balance of the estate into two trusts. On winding up of the trusts, the capital is to be divided between the adult children, a spouse of one of the children, the ex-nuptial grandchild and 2 charities.

His Honour made no gift at all in favour of 3 out of the 4 “new friends” (who had each sought a legacy of $1.4m) on the basis that their conduct rendered them undeserving. In respect of two of them, his Honour described their conduct as “disgraceful”. The fourth “new friend” received a pecuniary legacy of only $20,000.

MZY v RYI [2019] QSC 89

In this case, the Supreme Court of Queensland was asked to authorise the making of a statutory will for a severely injured child (“SGA”).

SGA was aged 30 and had no capacity to make a will due to severe brain injuries arising from medical negligence occurring during birth. Compensation was awarded to SGA and a significant portion of the awarded sum had been contributed to a superannuation fund on behalf of SGA.

The total asset pool at the time of the hearing was approximately $2,860,000.

SGA’s mother, MZY, applied to the court for a statutory will for SGA. MZY proposed that a Will be made gifting SGA’s principal place of residence, household contents and 75% of the residuary estate to MZY, with the remaining 25% of the residuary estate to be gifted to SGA’s father, RYI.

RYI objected to the application for a Statutory will, preferring that SGA’s estate be dealt with in accordance with the rules of intestacy. That is, that upon SGA’s death, SGA’s estate be divided equally between her parents, MZY and RYI.

MZY and RYI had been separated since 2009 and divorced in 2013.

SGA lived with and was cared for by MZY, and had been for the past 30 years.

The court ordered that a will be prepared for SGA gifting SGA’s principal place of residence and household contents and 65% of the residuary estate to SGA’s mother, MZY, with the remaining 35% of the residuary estate to be gifted to SGA’s father, RYI.

MZY also sought an order that she be able to make a binding death benefit nomination with SGA’s superannuation fund on behalf of SGA.

The court held that due to the significant value in the superannuation system for SGA, it was also necessary and appropriate to make an order conferring power on the mother to make a binding death benefit nomination for SGA. The mother was authorised to sign a binding death benefit nomination in favour of SGA’s estate.

How We Can Help

Care needs to be taken when considering bringing an application of this type. Before a statutory will application is commenced, obtain legal advice tailored to your individual situation from Ryan Murdoch O’Regan Lawyers.

Our lawyers go above-and-beyond to obtain the best possible result, each and every time.

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Contact Us

Get the best representation. Contact Ryan Murdoch O’Regan Lawyers’ experienced wills and estates lawyers on 1800 999 529, email mail@rmold.newwebsite.live or submit an enquiry below.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.