What Happens When A Person Is Not Capable Of Making A Will?

WHAT IS A STATUTORY WILL?

A Statutory Will is one that is made or altered and approved by the Supreme Court on behalf of a person who lacks the capacity to make their own Will.  Such Wills are a useful way of ensuring a person’s testamentary intentions are fulfilled even if that person has lost capacity to make a Will.

THRESHOLD REQUIREMENTS

Statutory Wills were introduced in Western Australia by the Wills Amendment Act 2007 (WA) and provide the Supreme Court of Western Australia with the power to make, alter or revoke a Will on behalf of a person who lacks testamentary capacity.

However, several requirements that must be met before the Supreme Court can exercise this power.  These requirements include:

• That the person concerned is incapable of making a valid Will or of altering or revoking their Will.

• That the suggested Will, alteration or revocation is one which could be made by the person concerned, if the person had the capacity.  

• That the applicant is an appropriate person to make the application.  

• That adequate steps have been taken to allow all persons with a legitimate interest in the application, to be represented in the proceedings.

TESTAMENTARY CAPACITY

A person is unable to make a Will if they lack capacity.  A person who lacks capacity is considered not have the required mental capacity to make a Will, as they are unable to understand the nature of the act of making a Will and its effects, understand the extent of property disposed of by the Will, and are unable to comprehend and/or appreciate the claims on the assets in the estate. 

WHEN A STATUTORY WILL MAY BE REQUIRED

There are a number of circumstances in which an applicant may seek to adjust the beneficial entitlements to the estate of a proposed Will maker (whether under an existing Will or on intestacy).  

The follow are some examples:

• Where the Will maker has suffered a disability and is being cared for by one parent to that parent’s financial detriment.  

• Where there is clear evidence that the Will maker’s testamentary views have changed since their existing Will was made.  

• Where the Will maker has separated from their partner and the existing Will provides a substantial benefit for that partner.

• Where a gift to a beneficiary will lapse (i.e. not take effect) due to the death of the beneficiary.  

We can assist if you require advice in respect of your estate planning matters or those of your family members.