What If a Person is Incapable of Making a Will
A statutory will is a legally approved will that is made or modified by the Supreme Court on behalf of an individual who lacks the capacity to create their own will. These types of wills were introduced in Western Australia through the Wills Amendment Act 2007 (WA), giving the Supreme Court the authority to create, alter, or revoke a will for someone who cannot do so themselves.
Before the court can intervene to create, alter, or revoke a will, certain conditions must be met according to Section 42 of the Wills Act:
The person in question must be incapable of making a valid will or changing their existing will.
The suggested will, alteration, or revocation must align with what the person would have wanted if they had the capacity to make their own decisions, taking into account their intentions.
The applicant making the request must be deemed appropriate by the court. This can include anyone, even someone who may benefit from the statutory will.
The court must ensure that all relevant parties with a legitimate interest in the matter have been given the opportunity to be part of the proceedings.
A person lacks testamentary capacity if they are unable to comprehend the nature and effects of making a will, understand the extent of the property being distributed, and appreciate the claims on the assets in their estate.
There are several situations where a statutory will might be necessary:
If the proposed will maker is disabled and one parent is caring for them at financial expense, provisions may be made for that parent in the will.
Changes in the will maker's views or values might warrant alterations to their existing will.
If the will maker has separated from their partner, adjustments to the will may be needed.
Changes in external circumstances, like a child's special financial needs due to health issues, could justify a new will.
If a gift to a beneficiary lapses due to their death, the will maker's intentions for an alternative recipient can be addressed.
Statutory wills may also be required if the previous will is missing, defective, contains errors, or has ambiguous language.
In cases where the will maker would, if capable, change their will to avoid adverse effects on a beneficiary's social security means testing.
We can assist if you require advice in respect of wills, deceased estates or estate planning.