One of the fundamental requirements of making a Will is that the will-maker must have the requisite capacity to make decisions about their assets as they wish. This can be problematic for those who have made previous Wills but suffered from mental health diseases and no longer able to make decisions about dealing with their assets themselves. It is also an issue for people who have suffered a life-threatening accident and do not have a Will and would not gift their estate in accordance with intestacy laws. If someone you love has lost the capacity to make or amend their Will, the good news is that it is still possible for them to make one which is deemed valid by the court. 

What is testamentary capacity and how is it determined?  

Testamentary capacity refers to the mental ability for a person to create a Will. You will have testamentary capacity if you: 

  • are at least 18 years old (however a court may authorise a minor to be able to make a Will); 
  • are aware of the nature and effect of a Will; 
  • are aware of the value of your estate; 
  • know which persons may be considered to be beneficiaries to your Will; and 
  • have the ability to evaluate the claims of each potential beneficiary against your estate when deciding how to gift your estate (Banks v Goodfellow (1870) LR 5 QB 549). 

It will be unlikely to prove testamentary capacity if someone cannot: 

  1. remember all the assets they hold; and  
  1. fully understand how to gift their estate to people who may be entitled to receive a proportion of the estate.  

It should not be forgotten that someone may have never had testamentary capacity to make a Will as a result of being: 

  1. Born with an intellectual disability; or  
  1. A child who may have serious illnesses that may prevent them from meeting the minimum age requirement.  

This is why Queensland laws allows the court’s to make Wills for those who do not have capacity to draft their own Will. 

Statutory Will – How to make a Will when there is no testamentary capacity  

A Statutory Will, also known as a court-made will, is an order made by the Supreme Court to make, amend or revoke a Will of a person who lacks testamentary capacity. To make the order, the court puts themselves in the position of the will-maker to determine what their intentions would have been if they had the capacity to make their own Will. 

Anyone can make an application to the Supreme Court for a Statutory Will to be made on behalf of a person who lacks capacity. This allows not only spouses or family members to make an application, but also an attorney under an enduring power of attorney, a lawyer, a carer or friends of the person who lacks testamentary capacity can make an application. 

While anyone can make an application to the court, the court must be satisfied that the proposed Will accurately reflects the likely intentions of the will-maker in the event they did have the testamentary capacity to make their own Will. To determine the will-maker’s likely wishes, the court will take into account the following: 

  • documented proof that the will-maker has lost testamentary capacity and whether there is the ability for the will-maker to regain their testamentary capacity; 
  • an estimate of the will-maker’s estate; 
  • any evidence of the will-maker’s wishes as to how to gift their estate (especially if there is evidence the will-maker would leave a charitable gift); 
  • a draft of the new Will, the amendment or the revocation which is sought by the applicant; 
  • details of who may be entitled to the estate for intestacy rules; and 
  • whether anyone might make a family provision claim against the will-maker’s estate. 

Obtaining a court authorised Will provides the advantage of: 

  • ensuring that intestacy rules will not apply. This is particularly relevant for situations where there are estranged family members or there is a likely possibility that there will be no direct family living which would mean the state will then receive the proceeds of the estate; 
  • it provides certainty as to whom the court authorises to act as executor to administer the estate and who is entitled to receive the benefit of estate assets; and 
  • a statutory Will can impose conditions a beneficiary must meet before receiving their inheritance from the estate (e.g. a vesting age for the gift). 

Key Takeaways  

While it is possible for someone lacking testamentary capacity to make a new Will, applying for a statutory will is not something to be considered lightly. Firstly, the court-authorised Will must be made while the person is alive, however they no longer have the capacity to make their own Will. This will likely need to be proven by family, friends and medical professionals’ evidence. The Will terms must be drafted in a way the will-maker would have drafted their own Will if they had capacity. 

If you have any questions or require assistance with drafting or updating your will in Queensland, please contact the property team at NB Lawyers for more information. 

Written by

Kayleigh Swift, Associate

Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.

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[email protected]
(07) 3876 5111

Chloe Skubis, Lawyer

Chloe Skubis is a Lawyer in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.

Chloe Bio Page
[email protected]
(07) 3876 5111