Can a Will Be Made for Someone Who Has Lost Capacity?

What Is a Statutory Will?

A statutory will is a Will authorised by the Supreme Court of Victoria for a person who lacks the capacity to make a Will themselves. The Court does not write the Will because it thinks the result is a good idea. Instead, under section 21B(b), the Court must be satisfied that the proposed Will or revocation reflects what the person's intentions would be likely to be, or what might reasonably be expected to be their intentions, if the person had testamentary capacity.

In short:

• It is a Will authorised by the Court, not signed by the person themselves.
• It is only available where the person lacks testamentary capacity.
• Under section 21B(b), the Court must be satisfied that the proposed Will or revocation reflects what the person's intentions would be likely to be, or what might reasonably be expected to be their intentions, if they had testamentary capacity — not what the family, carers or applicants would prefer.
• It is governed by the Wills Act 1997 (Vic) and requires a formal application.

When Might a Statutory Will Be Needed?

An application under section 21 of the Wills Act 1997 (Vic) may be considered where a person has lost testamentary capacity because of, for example:

• Dementia.
• Alzheimer's disease.
• Acquired brain injury.
• Intellectual disability.
• Serious illness.
• Loss of capacity following an accident.

Whether the underlying condition is long-standing or recently acquired, the question is the same: does this person have the ability to understand and make a valid Will now? If not, the next question is whether the evidence can satisfy the Court of the section 21B requirements in relation to the proposed Will or revocation.

Situations that may prompt advice on a statutory will application include:

• There is no Will at all, so the rules of intestacy would decide who inherits.
• The existing Will is significantly out of date and no longer reflects the person's relationships or circumstances.
• Family circumstances have changed — for example, through separation, remarriage, the birth of children or grandchildren, or the death of a named beneficiary.
• Intestacy would produce an unintended outcome, such as assets going to a person from whom the individual was long estranged.

What Must the Court Consider?

Under section 21B of the Wills Act 1997 (Vic), the Court must be satisfied of three matters before authorising a statutory will:

Lack of testamentary capacity

The Court must be satisfied that the person lacks testamentary capacity. Evidence on this issue may include medical evidence — for example, from a treating doctor or specialist familiar with the person's condition — but what evidence is required in a particular case is a matter for the Court.

Likely, or reasonably expected, intentions

The Court must be satisfied that the proposed Will or revocation reflects what the person's intentions would be likely to be, or what might reasonably be expected to be their intentions, if the person had testamentary capacity. Both intention limbs are part of the statutory test. Evidence may include prior Wills, letters, statements the person has made, the nature of their relationships and other material bearing on likely intent.

Reasonable in all the circumstances

The Court must also be satisfied that it is reasonable in all the circumstances that the order be made. What is reasonable depends on the evidence in the particular case, including the size of the estate, the interests of persons affected and the position of any vulnerable person.

Section 21A sets out information the applicant must provide if required by the Court. Section 21C identifies persons entitled to appear, and the Court controls directions about service and notice.

Illustrative Scenarios Where a Statutory Will Application May Be Considered

The following are illustrative situations in which a statutory will application under section 21 of the Wills Act 1997 (Vic) may be considered. Whether an order will be made in any particular case depends on the evidence and on the Court applying the section 21B tests; the outcomes below cannot be predicted in advance.

• A long-term carer where intestacy would apply. An elderly person without a Will has been cared for over many years by a niece. Under the rules of intestacy the estate would pass to relatives who have had little to do with the person. Whether the section 21B tests are met depends on the evidence about the person's likely intentions.
• An out-of-date Will benefiting a former partner. A person made a Will many years ago leaving everything to a partner from whom they later separated. Capacity is now lost and the Will has never been updated. Whether the Court would authorise a new Will depends on the evidence and the section 21B tests.
• Significant changes in family relationships. The person's relationships with family members may have changed since the original Will was made in ways the existing Will does not reflect.
• Charitable intentions never formally documented. The person is said to have expressed a wish for a particular charity to benefit but never made a Will recording that intention.
• An adult with a lifelong disability who has never had capacity. An adult with a lifelong intellectual disability receives a substantial inheritance or compensation. Whether an order under section 21 is appropriate depends on the evidence about the person's circumstances and the section 21B tests.

Where Statutory Wills May Have a Role

Statutory wills are a specialist statutory remedy under Part 3 of the Wills Act 1997 (Vic). Where the Court is satisfied of the section 21B requirements, an order may:

• Authorise a Will where the person lacks testamentary capacity and would otherwise die intestate or under an out-of-date Will.
• Authorise the revocation of a pre-existing Will where section 21B is satisfied.
• Provide a mechanism to address changed circumstances that the person can no longer address themselves through a personal Will.

Whether an order will be made in any particular case depends on the evidence and on the Court applying section 21B; outcomes cannot be predicted in advance.

Is a Statutory Will Application Simple?

Statutory will applications are heard in the Supreme Court of Victoria and require careful preparation. Section 21A sets out information the applicant must provide if required by the Court. Depending on the directions of the Court in the particular case, that information may include:

• Medical evidence bearing on the person's testamentary capacity;
• Affidavit material setting out the background, the proposed Will or revocation and the reasons it is said to satisfy section 21B;
• Material about the person's relationships, assets, liabilities and dependants, and any past expressions of testamentary intention; and
• Compliance with Court directions as to service and notice on persons the Court directs and the provision of the proposed Will.

Because the Court is being asked to authorise a Will for a person who cannot speak for themselves, the evidence must be prepared with care. Specialist legal advice is important.

Key Takeaways

A person losing testamentary capacity does not necessarily foreclose all options for their estate planning. Where the requirements in section 21B of the Wills Act 1997 (Vic) are satisfied, the Supreme Court of Victoria may authorise a Will, or the revocation of a Will, on the person's behalf.

Statutory wills are not available in every situation. Whether an application is available and appropriate depends on the evidence and on the section 21B tests.

If a family member has lost capacity and you are concerned about their estate planning, contact Parke Lawyers for advice on whether a statutory will application may be available and appropriate.

Frequently Asked Questions