What happens when someone does not have capacity to make a Will?

To make a Will in Australia, a person must be over the age of 18 and have what is known as testamentary capacity. Statutory Wills are a mechanism which can help create a Will for a person who lacks testamentary capacity. So, what is Testamentary capacity? This is a legal term referring to the mental capacity of a person to make their Will. If someone has testamentary capacity, it means they understand:

• the purpose and effect of a Will;
• what their assets are;
• who would fit in the usual categories of beneficiaries of an estate (i.e. who would be gifted the estate); and
• why they want to gift their estate in the manner they have chosen.

Someone may lack capacity if they suffer from an intellectual disability or medical condition that otherwise affects their capacity. It is essential for your lawyer to assess testamentary capacity at the time you sign your Will, and your lawyer may request a medical report to assist with their determination.

While a person who lacks testamentary capacity is not able to make a Will themselves, they may be eligible for a Statutory Will (otherwise known as a Court-made Will). A Statutory Will occurs where the Court authorises the creation (or in some cases – revocation) of a Will on behalf of someone who lacks testamentary capacity. This is particularly useful where the person has valuable assets and either does not have a Will, or has an old Will which no longer reflects their circumstances and what their wishes would be. An authorised person (such as family member or a caregiver) may make an application to the Court to create a Statutory Will. The Court will take evidence into account and will only authorise the Will if satisfied that:

• The person lacks testamentary capacity; and
• The proposed Will reflects what the person would have likely put in their Will if they had testamentary capacity.

In the matter of Re the Will of Robert, Robert suffered from a developmental disability, mental health conditions and physical disabilities. He required support with various daily activities, as well as assistance with transport, shopping and budgeting. The medical evidence supplied to the Court about Robert stated he had limited decision-making capacity. Robert’s estate was estimated at over $1,000,000.00. The beneficiaries of the Will Robert had made 30 years prior were either deceased or estranged. Robert had no immediate family still living.

An application was made for a Statutory Will by Robert’s long-time friend and financial planner. Over a decade prior, the financial planner and his wife had noticed Robert appearing lonely and distressed around town. They had done things for Robert, including –

• They had taken it upon themselves to become involved in Robert’s life, and since that point had provided daily care and friendship to Robert.
• They had a room at their house for Robert where he would stay every fortnight, as well as during holiday periods.

Robert also had an old caseworker, who became a friend of Robert’s, and he would provide daily support to Robert, visit him weekly and give gifts to Robert on special occasions. The Statutory Will accepted by the Court appointed the financial planner as executor, with the financial planner, his wife and the caseworker receiving equal shares of Robert’s estate.

If someone that you know or care for is not able to make a Will because they lack capacity and you want to consider an application for a Statutory Will, our team of Private Wealth Law specialists can assist you.