All adults should prepare a Will. It is also important to review your Will regularly and update it as your circumstances change.
However, if a person (for example) suffers from a severe brain injury or has advanced dementia and needs a Will, they of course will not have the mental ability to do so.
In special circumstances, the Court has the ability to make, change and even revoke a Will on behalf of an adult who does not have the mental ability to do so themselves. These are known as ‘Statutory Wills’ or ‘Court ordered Wills’.
The Court’s powers extend to children, as well. Ordinarily, if a child needs to make a Will, they cannot do so by themselves. However, a Court may authorise a child to make a will (or alter or revoke a will) if the Court considers it reasonable and is satisfied the minor’s intentions are being met.
For example, if a child has received a large inheritance or personal injury compensation payment, it will be advisable in certain circumstances to seek the Court’s authorisation for the child to make a Will.
Why might a Will be necessary for a child or person with a mental disability or brain injury?
If a person dies without a Will, their estate must be dealt with according to laws of intestacy. Those laws will not always be in accordance with a person’s wishes and can lead to unfair outcomes.
For example, a child who has received a large inheritance or compensation payment, might not have any relationship with one of his/her parents, but if that child dies without a Will, the child’s estate must be split equally between both parents under the laws of intestacy.
Another example is where an adult has a Will leaving a large gift to their husband or wife, but the two subsequently separate (and do not divorce) and the adult suffers a severe brain injury. Without the Court’s approval to alter that previous Will, the ex-partner will still be entitled to receive that large gift when the adult passes away.
A Statutory Will may be able to remedy these situations.
If you would like advice about Statutory Wills, please contact our friendly Estate Planning Team on +61 7 3001 2999 for a free, no obligation appraisal.