Applying for a court
What is a court ordered Will?
A Court Ordered Will, or Statutory Will, is a Will made on behalf of someone who does not have the mental capacity or ability to make their own decisions (ie they lack testamentary capacity). Since 2006 all Australian states and territories have introduced laws permitting courts to authorise that a Will be made, altered or revoked for a person deemed to be lacking testamentary capacity. As the Australian population ages, and as life expectancy increases, requests for Statutory Wills are becoming more common. This is a complex area of the law that requires specialist legal knowledge.
If you have any questions about Court Ordered Wills, testamentary capacity or other Wills Disputes matters, please contact our office for a confidential, no-obligation discussion about how we can help you. We offer a 'no win, no fee'* cost agreement in most matters relating to Will Disputes.
The three types of court ordered Wills
Court Ordered Wills can be divided into three categories, determined by the context in which the Will was created.
Lost Capacity—applies when the person had mental capacity, but lost it later in life, for example as a result of illness or accident. The person’s previous valid Will, if they had one, may no longer be deemed valid or applicable.
Nil Capacity—applies when a child suffers an illness or accident from birth or in early infancy, which causes loss of capacity, and means that the person will never have the required capacity to make a Will.
Pre-empted Capacity—applies when a person does not have the capacity to make a Will, but previously had the capacity to express reasonable wishes or to form a relationship that should be reflected in a Will, as recognised by the court.
When a person does not have a valid Will each state has rules about how a person’s estate is administered. These are known as the intestacy rules. Often though, the distribution of an estate when the intestacy rules are applied is not appropriate, nor what the deceased would have wanted.
If you need legal help with a court order relating to a Will, please contact our office to discuss how we can assist you.
How to apply for a court ordered Will
To apply for a Court Ordered Will, an application must be made to the Court seeking an order for the making of a Will. However, before granting that leave, the court must be satisfied that adequate steps have been taken to ensure that all people with a proper interest in the estate are represented.
Before making the order, the court must also be satisfied that the person, on behalf of whom the Will is being created, lacks testamentary capacity and is alive at the time the Will is made. The court must also be satisfied that the proposed Will is, or may be, a Will that the person in question would themselves make if they had testamentary capacity.
What is testamentary capacity?
In order to make a Will, and in addition to being over the age of 18, a person must have testamentary capacity, which means they must understand:
- the nature and effect of a Will
- what their assets are
- those people who may have a claim against the estate.
All you need to know about Will disputes
Whether you are thinking of challenging or contesting a Will, or if you are the executor or beneficiary of a Will that is being challenged, our Will disputes lawyers can assist you.
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