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, it tries to work out — based on the evidence — what that particular person would most likely have wanted if they had been able to make their own Will.

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.
• It aims to reflect what that person would likely have wanted, 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?

Statutory will applications most often arise where a person has lost capacity because of:

• 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 current legal position would produce an outcome that clearly does not reflect what they would have wanted.

Common situations that point towards a statutory will 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• The existing Will is significantly out of date and no longer reflects the person's relationships or circumstances.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?

The Court does not approve a statutory will simply because the family asks for one. Under the Wills Act 1997 (Vic), the Court must be satisfied of several things before making an order. Put in plain terms, the key requirements are:

Lack of testamentary capacity

The Court must be satisfied that the person currently lacks the capacity to make a valid Will. This usually requires medical evidence from a treating doctor or specialist, addressing the person's ability to understand what a Will is, what assets they have, who might reasonably expect to benefit and the effect of the proposed Will.

Likely wishes of the person

The Court must consider what the person's intentions might reasonably have been if they had capacity. This draws on a wide range of material — earlier Wills, letters, statements to family and friends, the nature of their relationships, their lifestyle, charitable giving and how they have treated relatives over time.

Reasonableness of the proposed Will

The Court must also be satisfied that it is appropriate, in all of the circumstances, to make the order sought. The proposed Will should be a fair and sensible reflection of the person's likely wishes, taking into account the size of the estate, the competing interests involved and any vulnerable beneficiaries.

Examples of When a Statutory Will May Be Appropriate

Statutory wills are best understood through everyday examples rather than abstract principles. The following scenarios illustrate the kinds of situations that may justify an application.

• A long-term carer who would otherwise receive nothing. An elderly person without a Will has been cared for by a niece for many years. Under the rules of intestacy, the estate would pass to relatives who have had little to do with them. A statutory will may allow appropriate recognition of the carer's role.
• 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. A statutory will may bring the estate plan into line with the current reality.
• Significant changes in family relationships. A person's relationships with their children may have changed substantially since the original Will was made — through estrangement, reconciliation or the arrival of step-children — in ways the existing Will does not reflect.
• Charitable intentions that were never formally documented. A person regularly spoke about wanting a particular charity to benefit from their estate but never made a Will recording that intention.
• A young person with a disability who has never had capacity. An adult child with a lifelong intellectual disability receives a substantial inheritance or compensation payment. A statutory will can ensure that, on their death, the funds pass to those who have supported them rather than under default intestacy rules.

Why Statutory Wills Matter

Statutory wills are a relatively specialist remedy, but they play an important role in modern estate planning. Used appropriately, they can:

• Prevent unintended intestacy outcomes by avoiding the rigid application of default rules where they would clearly not reflect the person's wishes.
• Reflect modern family circumstances, including blended families, separation, step-children and long-term carers.
• Protect vulnerable people, particularly those with disability, by ensuring their estate is dealt with in a considered way.
• Reduce the risk of future estate disputes by addressing obvious issues during the person's lifetime, with the benefit of Court oversight.
• Better reflect likely testamentary intentions than an old or non-existent Will ever could.

Is a Statutory Will Application Simple?

No — statutory will applications are not a quick or informal process. They are heard in the Supreme Court of Victoria and require careful preparation. A typical application will involve:

• Medical evidence addressing the person's capacity, ideally from clinicians familiar with their condition.
• Affidavit material setting out the background, the proposed Will and the reasons it is said to reflect the person's likely wishes.
• Family evidence, often from several people, about the person's relationships, statements they have made and their approach to family and finances.
• Detailed Court procedures, including serving notice on people whose interests may be affected and providing the Court with a draft of the proposed Will.

Because the Court is being asked to make a Will for someone who cannot speak for themselves, the evidence must be thorough and the reasoning carefully presented. Specialist legal advice is usually essential.

Key Takeaways

Losing capacity does not necessarily mean losing control over how an estate will ultimately be distributed. In appropriate circumstances, the Supreme Court of Victoria may authorise a statutory will to reflect what a person would likely have wanted had they retained capacity.

Statutory wills are not for every situation, but where they are available they can prevent unfair outcomes, protect vulnerable family members and bring an estate plan into line with the person's true circumstances.

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.