If a Person Has a Property But is a Child or is Mentally Impaired, Can the Court Make a Will for Them?
The short answer is yes … in special circumstances.
The Supreme Court has the power to make a “statutory Will”. However, section 22 of the Succession Act 2006provides that the Court must refuse leave to make an application to make a statutory Will unless the Court is satisfied:
- that the person whose behalf the application is made (“Person”) is incapable of making a Will; and
- the proposed Will, alteration or revocation is reasonably likely to be the one that would have been made by the Person if he or she had testamentary capacity; and
- it is or may be appropriate for the order to be made.
Set out below are some cases which provide some good examples of where Courts have approved statutory Wills.
- Re DH:Application by JE and SM (2011) ATSC 69. In this case an application was made for a statutory Will for DH who had suffered a heart attack many years previously and had permanent brain damage. At the time of the heart attack, DH was in a relationship with a woman who, along with her daughter, acted as his carer for the next 12 years. After hearing evidence that DH had no living relatives who would otherwise be entitled to the estate, the Court approved a new Will leaving his estate to his carer and her daughter.
- DeGois v Korp (2005) VSC 326. This was a Victorian case involving an application for a statutory Will on behalf of Mrs Korp who had been assaulted by her husband resulting in severe brain damage. The Court approved a new Will removing Mrs Korp’s husband as executor and beneficiary of her estate.
- “Charles” (2009) NSWSC 530. This was a case involving a 12 year old child who, as a result of physical abuse from his parents, suffered severe and permanent brain damage. “Charles” was taken into care by the Minister for Community Services and received victims compensation of $50,000. The Minister for Community Services made an application for a statutory Will for “Charles” to prevent the money being inherited by his parents following his death.
- Doughan v Straguszi (2013) QSC 295. This was an application to rectify a previous Will which did not adequately deal with the assets, which included the family farm, of the person concerned. Since making the Will the person had developed dementia. In this case, one of the beneficiaries was facing bankruptcy and it was argued by one of that person’s creditors that the application was made for an improper person. However, the Court held that a prudent testator would have wished to rectify the error in order to address the whole family’s beneficial interest in the farm. Any impact on the creditors of a single beneficiary was an “ancillary consequence”. The statutory Will, fixing the problem, was authorised.
This is a complex area of the law but it can be used to address a problem in the right circumstances.
If you require further information or advice concerning statutory Wills, please contact Paul Pritchard on 9543 1444 or by email at firstname.lastname@example.org.