If an individual doesn’t have the mental capacity to create a valid final will and testament for themselves, the Court can authorise the construction of a ‘statutory will’.
In such instances, a formal will proposal is put before the Court, which is then either approved or rejected. While any individual can make an application, typically a testator’s family members, potential beneficiaries or guardians apply for a statutory will.
With this in mind, it’s important to note that the Court themselves don’t advise individuals on how the testator’s estate ought to be administered. Instead, they assess whether the suggested distribution of assets is in the will maker’s best interest and, respectively, decide whether to authorise such request.
The legislation that dictates this process is detailed under Part 3 of the Wills Act 1997 (Vic) and has been actioned since 1997.
The number of applications for statutory wills is expected to increase steadily. This upward trend is likely a reflection of both the ageing Australian population and the growing amount of people impacted by dementia.
Why do People Make Statutory Wills?
There are various circumstances under which a statutory will is either desired or necessary.
Fundamentally, wills of this nature are, of course, created when the testator doesn’t have the testamentary capacity to write and validate a legally enforceable will.
For instance, they may have a certain condition, such as dementia, which negatively impacts their ability to make considered decisions. This means that, in most cases, they don’t understand all that is required to make a will or the implications of their choices.
Statutory wills may also come into effect when the testator has an intellectual disability or illness, from which they experience delusions of the mind.
Often, the individual will already have an existing will and, upon review, it’s clear that their testamentary wishes are either out of date or no longer relevant given the situation. Thus, either an entirely new or partially updated version of their will may be submitted to the Court by certain parties, which, if approved, is brought into effect as their statutory will.
As each case involving statutory wills can be remarkably different from the next, it’s highly suggested that you speak with an expert in the field. This will, ultimately, allow you to gather more relevant information, all the while determining whether your proposal is likely to hold legal merit.
Understanding Testamentary Capacity
For an individual’s will to be deemed legally enforceable, they must have had testamentary capacity at the time their will was created and validated.
As per Banks v Goodfellow, to be considered sound of mind at the time their will was written, a person must:
- Understand the nature of their will and its implications;
- Understand the nature and extent of their property;
- Comprehend the claims to which they ought to give effect;
- Not be suffering from any type of disorder or insane delusion that may impact their decisions.
After a testator’s passing, whether or not they had sufficient understanding of their testamentary decisions may come into question.
It’s not uncommon for those closest to the will-maker to be shocked or caught off-guard by certain provisions that have been made. In fact, this is a common reason for will disputes to arise between beneficiaries.
In such cases, an eligible person may decide to contest a will based on their belief that the individual was not of sound mind during the writing process. This usually occurs if the testator is in a vulnerable position, making them particularly susceptible to manipulation, undue influence or the like.
Determining the Intentions of Someone Who Lacks Testamentary Capacity
When an individual doesn’t have the testamentary capacity to write a valid will, how can those closest to them (and the Court) decide what they would’ve wanted?
Applicants need to submit an array of information to the Court, assisting them in making a considered, informed decision. As detailed in the Wills Act, this includes:
- A reasonable estimate of the size and character of the testator’s estate;
- A draft of the suggested will;
- Any evidence showing the testator’s wishes;
- Any evidence that conveys whether it’s likely for the testator to regain their will-making capacity;
- Any pre-existing wills that were made by the person;
- Any evidence detailing the likelihood of a family provision claim being actioned after the person’s passing;
- Any individuals who may be reasonably expected to receive provision from the estate and, respectively, their current circumstances;
- The details of any potential beneficiary who may be entitled to a claim on intestacy;
- Any evidence of a gift or type of charitable provision that the testator may be reasonably expected to delegate in their will.
Victorian legislation requires that the proposed will reflects ‘what the intentions of the person would be likely to be or what the intentions of the person might reasonably be expected to be’. If the Court deems such statement to be true upon review of the applicant’s suggested will, the document will be approved.
Case Study: Re Gillam  VSC
In the case of Re Gillam , the proposed testator, Mrs Gillam, was 92 years old.
In 1963, Mrs Gillam’s husband with whom she had two children, Ian and Peter, passed away. She remarried in 1976 and, while she didn’t go on to have any more children, she became the stepmother to her husband’s daughter.
Mrs Gillam’s most recent will was written and validated in 2011, which appointed her two sons and Noel (her husband) as the executors and trustees of her estate. Her assets were to be administrated as follows:
- $30,000 to her step-daughter;
- Legacies to each of her grandchildren and step-grandchildren, each totally $20,000;
- Various personal possessions which were to be gifted to her sons and Noel;
- A life interest for Noel in their Canterbury property, which would pass to her two sons in the event of his passing;
- The remainder of the estate to be distributed equally between her two sons and Noel.
At the time of her will’s construction, Mrs Gillam was the sole proprietor of the Canterbury property where she and Noel resided. However, she later transferred a half interest in the property to Noel, which appeared to have been done in a bid to ease financial tensions between the couple.
As of 2012, it was made apparent that Mrs Gillam was experiencing dementia. During 2014, she moved into the home of her son, Peter, and his family. While she no longer resided with Noel, he continued to visit her each week.
The Reason for a Statutory Will
In 2015, Noel sought out a property settlement under the Family Law Act 1975, which at its conclusion finalised the financial relationship between him and Mrs Gillam. This meant that he was no longer responsible for providing Mrs Gillam with financial support. Thus, the following was actioned:
- Mrs Gillam’s share in the Canterbury property was transferred to Noel;
- Noel retained $550,000;
- Mrs Gillam retained sole ownership of her property at Fairhaven;
- Each party retained their share portfolios;
- Loans to members of Noel’s family were retained by him, while those owing to members of Mrs Gillam’s family were retained by her.
Following this, Ian, one of Mrs Gillam’s sons, applied for a statutory will for her. At the time, Mrs Gillam’s dementia was advanced.
The Court’s Ruling
The drafted will proposed that Mrs Gillam’s 2011 testamentary wishes remain relatively intact, with the exception of Noel being removed as executor and receiving no further provision.
During the proceedings, it was found that the testator not only lacked testamentary capacity but also that if she was of sound mind, she would have actioned the suggested amendments. This was, in part, because under the three prior wills that Mrs Gillam wrote, she hadn’t left Noel anything close to the sum he received under the financial settlement.
Thus, her son’s application for a statutory will was successful.
Contesting a Statutory Will
The testator’s will has, essentially, already been approved by the Court, so it’s unlikely this decision will be overturned. Thus, once a statutory will is deemed enforceable, such ruling typically stands true unless the process completed during its approval was legally flawed.
Cases involving wills can be highly complex, being that there are often an array of unique factors that must be taken into account. Thus, it’s important to ensure you’re well informed, particularly if you’re considering pursuing a will dispute.
Will disputes aren’t always straightforward but, by speaking with a professional, you can establish whether you’re an eligible person with a meritable case. If you’re interested in making a claim against an estate, make sure you have the facts.
From the time probate is granted, an eligible person only has a six-month window to contest or challenge the will. Thus, if you believe you may be entitled to a greater share of an estate’s assets, promptly seeking out legal advice from your will dispute expert is crucial.
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