In this edition of 'It depends', partner Hayley Mitchell talks about whether a person can make a Will if they are incapacitated.


Hi, everyone, and welcome to another edition of It Depends. Today I am going to be talking about whether a person can make a Will if they are incapacitated.

Can a person make a Will if they are incapacitated?

So, generally, no, a person needs to have capacity in order to make a Will. However, there is scope under the Succession Act that allows the court to make a Will on behalf of an incapacitated person. This is called a Statutory Will. However, not all circumstances where a person is incapacitated will lead to a Statutory Will. So, it really will depend on the individual circumstances.

What is a Statutory Will?

A Statutory Will is a provision under the Succession Act that allows the Supreme Court to make the Will on behalf of the incapacitated person. So, rather, when a person personally signs their Will in this case, it is actually the Supreme Court doing this on behalf of the incapacitated person.

How is a Statutory Will made?

A Statutory Will is made by making an application to the court first. An appropriate person needs to make this application. Now that doesn't necessarily mean that it needs to be a family member. It might be a close friend or carer. It might be a professional adviser that's involved with their client or the solicitor. The person that's making the application will need to propose the terms of the Will to the court. The court will then make a decision whether or not they grant that Will or vary its terms to some degree. The court will need to be satisfied that the rule proposed and the Will that is eventually made by the court is a Will that the incapacitated person themselves would have or may have made if they had capacity themselves. So, you need to provide evidence and reasons why the terms of the Will that are being proposed are what you think the incapacitated person would want if they could give instructions. The court will also need evidence of the person's incapacity, so an incapacitated person might be a minor. So, someone who is under the age of 18 and in those cases, the evidence will be quite straightforward. Other times, you might be dealing with an elderly person who has lost capacity due to a medical condition such as dementia or Alzheimer's, and in those cases, the court will want to see evidence from specialist medical practitioners like a geriatrician and a specialist estate lawyer as well.

Examples of where Statutory Wills are used

Commonly, a Statutory Will will be used in circumstances where we're dealing with an elderly family member and some of their intended beneficiaries, their circumstances might have changed. So, either a beneficiary has died and the current Will doesn't deal with that properly or a current family member is going through a divorce and they need extra protection under the terms of the Will. Another common scenario is children or young people that have received large compensation payments for things relating to accidents or medical complications at birth or during medical procedures. Another scenario that a Statutory Will might be used for is where an incapacitated family member has been wronged in some way. So, commonly a child that might have taken some money from mum and dad. We have seen the court make a Statutory Will to make an adjustment between the other siblings or cut that person out that has wronged the incapacitated person in some way.

If you would like more information or some advice about whether you need to make an application for a Statutory Will, contact a member of our private client team.

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