Making a Will for persons who lack capacity

All adults should prepare a Will to ensure that their assets pass to the people they choose when they die. If a person dies without a Will, their estate must be dealt with according to the ‘laws of intestacy’. Those laws are very strict and will not always be in accordance with a person’s wishes, leading to unfair outcomes.

A person can only make a Will if they have the necessary capacity to do so, which can be assessed by a solicitor. If, for example, a person has a cognitive disability or has suffered a brain injury, they may not have the necessary capacity to make a Will. This means that their assets may not pass to the people they would choose (if they could) when they die.

As an example, if a person with a cognitive impairment (who has received a large inheritance or compensation payment) and has a relationship with only one of their parents dies without a Will, their estate must be split equally between both parents under the laws of intestacy. This might be an entirely unfair outcome, if one parent has cared for the person for many years and the other has had no relationship with them at all.

Fortunately, the Court has the ability to make, change and even revoke a Will on behalf of an adult or child who does not have the ability to do so to remedy situations like these. These are known as ‘Statutory Wills’ or ‘Court ordered Wills’.

There are no restrictions on who can apply for a Statutory Will. Applications can be made by persons such as family members, close friends, carers or attorneys of a person who does not have capacity. However, the Court must be satisfied that the person making the application is not doing so solely for their own benefit.

In order for such an application to be successful, the Court must be satisfied that the person for whom a Statutory Will is sought does not have the necessary capacity to make a Will and that the proposed Will or alteration is one they would make, if they were able.

A Statutory Will can only be applied for and made while the relevant person is alive, so it is important that interested persons do not delay in seeking legal advice in these matters.

Authors

Kellie Keenan is a Director at Bennett & Philp Lawyers
Charlie Young is a Senior Associate at Bennett & Philp Lawyers