In special circumstances, a court has the power and ability to make, change and even revoke a Will. These are known as 'Statutory Wills' or 'Court Ordered' Wills. A court can make an order for a Will to be made on someone’s behalf, for example, if a person suffers from brain injury, or dementia.
Before making such an important and far reaching order, the court must be satisfied that adequate steps have been taken to ensure that all people with a proper interest in the estate are represented. The court will also want to be satisfied that the person, on behalf of whom the Will is being created, lacks testamentary capacity and is alive at the time the Will is made. Another difficult element a court will enquire about is whether the proposed Will is, or may be, a Will that the person in question would themselves make if they had testamentary capacity.
An example of how Courts make such orders can be found in the recent case of JW v John Siganto as the litigation guardian for AW and CW in 2015 out of the Queensland Supreme Court.
At the age of 20, after a near fatal accident, RW was left with severe and permanent intellectual, physical, communication, behavioural, and cognitive disabilities. RW was awarded $5.2 million in a claim for damages.
The application was successful and a court authorised Will was granted for RW, the son of the applicant. The terms of the Will were:
- an independent executor and trustee would manage RW’s estate;
- a gift of 20% of RW’s residue estate equally to RW’s parents;
- a gift of 5% of RW’s residue estate to his sister;
- a gift of 37.5% of RW’s residue estate to each of his children equally to be held on trust until they reach the age of 25 years.
In reaching the decision, the court explored issues like whether RW’s previous de facto partner would be entitled to make a claim against RW’s estate and whether RW’s parents should receive a benefit from his estate.
As the Australian population ages, and as life expectancy increases, requests for Statutory Wills are becoming more common. This is a complex area of the law that requires specialist legal knowledge.
Please note the answers provided are for your general information only and we ask you to call our office on 02 6331 2911 to obtain detailed legal advice for your individual situation.
Wills & Estate Law | Kenny Spring Solicitors