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.<\/p>\n
The Succession Act 1981<\/i> (Qld) (\u201cthe Act<\/strong>\u201d) 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.<\/p>\n 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:<\/p>\n 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.<\/p>\n The following are examples of the categories of persons who have been found to be appropriate applicants:<\/p>\n A statutory will application is a 2 stage process:<\/p>\n Step 1: Apply to the court for permission (leave) to make the application<\/i><\/p>\n 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.<\/p>\n The court may grant permission to make the statutory will application if it is satisfied of the following:<\/p>\n Step 2: Make the statutory will application<\/i><\/p>\n 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:<\/p>\n 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.<\/p>\n 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.<\/p>\n If the statutory will application is successful, the legal costs of the application are generally paid out of the incapacitated person\u2019s assets, although this is not always the case. Any costs order is at the discretion of the judge.<\/p>\n Re APB<\/i> [2017] QSC 201<\/p>\n 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.<\/p>\n APB\u2019s 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\u2019s 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 \u201cnew friends\u201d including a Gold Coast real estate agent, her husband and a solicitor.<\/p>\n 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\u2019s \u201cnew friends\u201d befriended him in 2012.<\/p>\n At one stage, APB was in hospital when some of his \u201cnew friends\u201d 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\u2019s estate.<\/p>\n Justice Applegarth ordered a statutory will which included pecuniary legacies to APB\u2019s 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.<\/p>\n His Honour made no gift at all in favour of 3 out of the 4 \u201cnew friends\u201d (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 \u201cdisgraceful\u201d. The fourth \u201cnew friend\u201d received a pecuniary legacy of only $20,000.<\/p>\n MZY v RYI<\/i> [2019] QSC 89<\/p>\n In this case, the Supreme Court of Queensland was asked to authorise the making of a statutory will for a severely injured child (\u201cSGA<\/b>\u201d).<\/p>\n 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.<\/p>\n The total asset pool at the time of the hearing was approximately $2,860,000.<\/p>\n SGA\u2019s mother, MZY, applied to the court for a statutory will for SGA. MZY proposed that a Will be made gifting SGA\u2019s 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\u2019s father, RYI.<\/p>\n RYI objected to the application for a Statutory will, preferring that SGA\u2019s estate be dealt with in accordance with the rules of intestacy. That is, that upon SGA\u2019s death, SGA\u2019s estate be divided equally between her parents, MZY and RYI.<\/p>\n MZY and RYI had been separated since 2009 and divorced in 2013.<\/p>\n SGA lived with and was cared for by MZY, and had been for the past 30 years.<\/p>\n The court ordered that a will be prepared for SGA gifting SGA\u2019s principal place of residence and household contents and 65% of the residuary estate to SGA\u2019s mother, MZY, with the remaining 35% of the residuary estate to be gifted to SGA\u2019s father, RYI.<\/p>\n MZY also sought an order that she be able to make a binding death benefit nomination with SGA\u2019s superannuation fund on behalf of SGA.<\/p>\n 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\u2019s estate.<\/p>\n 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.<\/p>\n Our lawyers go above-and-beyond to obtain the best possible result, each and every time.<\/p>\n We are proud to deliver 5 star customer service to our clients.<\/p>\n Get the best representation. Contact Ryan Murdoch O’Regan Lawyers’ experienced wills and estates lawyers on 1800 999 529<\/a>, email mail@rmold.newwebsite.live<\/a> or submit an enquiry below.<\/p>\nWhen May A Statutory Will Be Required?<\/h3>\n
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Who May Make A Statutory Will Application To the Court?<\/h3>\n
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What Is the Process For Making An Application for A Statutory Will?<\/h3>\n
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Case Examples<\/h3>\n
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