Wills for Persons Who Lack Capacity, or Children
On occasions, there is a need to make a Will for a person who is legally unable to make one for themself. This might be a person who suffers from a brain injury or cognitive illness, or even a child.
These are called ‘statutory wills’ or ‘court ordered wills’ because only the Court can make them.
Why this type of Will may be needed – the laws of intestacy
Whenever a person dies without a Will, their assets must be distributed according to what’s called the laws of intestacy. Those laws, quite often, do not reflect what a person’s wishes might have actually been.
For example, if a parent dies without a Will leaving children (and no spouse), the parent’s assets must be distributed equally between the children, even if some or all of the children ended any resemblance of a relationship with the parent decades ago.
Alternatively, consider a child who inherited a substantial amount of money, but whose father abandoned her at a very young age. If that child tragically passes, her estate must still be distributed equally between both parents.
Wills ensure these types of undesired outcomes can be prevented. The problem is, persons with a cognitive illness (such as dementia), a serious brain injury, or under 18 years of age, are legally unable to make a Will.
This is where the Court comes in. The Court has power to make a Will for those types of people as well as revoke (cancel) or change an existing Will for them.
Who & how does one apply?
Usually, these types of applications are made by an appropriate family member, close friend, carer or attorney, but there is no restriction on who can make the application. (The person applying of course must be over 18 years of age and have capacity.)
As part of the application, the applicant will usually submit to the Court a draft of the proposed Will, along with certain affidavit evidence.
What does the Court take into account?
The types of things that the Court will take into account, in addition to the proposed Will, are those things which must form part of the affidavit evidence, which for example include:
The evidence must be thorough yet concise to maximise the chances of the proposed Will being approved. Equally as important, the proposed Will usually requires careful consideration and drafting by a solicitor so that it reflects, in the solicitor’s opinion, the type of Will the Court might make in those circumstances.
Ultimately, the Court must be satisfied based on the evidence presented that the Will proposed (or alteration or revocation proposed) is one which the person would make if they had capacity to do so.
How long is the process?
It really depends on the situation.
In extremely urgent cases, an application could be heard within a day but that would be highly unusual.
Usually, the timing is determined by how long it takes for the client to provide the necessary instructions to enable us to prepare the evidence and proposed Will. Usually, it is around six to ten weeks from the time we first hear from the client to when the matter is determined in Court (again, depending on the client).
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If you need advice about Court Ordered Wills, please contact us now for your free no obligation 30-minutes appraisal.
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