What happens if someone has lost capacity, but their Will does not reflect their wishes?

If you have a loved one who does not have capacity to make a Will, you may be concerned that their Estate will not be distributed in accordance with their previously communicated wishes. What can you do about it? 

Australian law recognises that there may be a need to change a person’s Will (or prepare a Will for a person) if that person has lost capacity.  When a person does not have capacity to make, alter or revoke their Will, the Court is empowered to make what is known as a ‘Statutory Will’ on behalf of the Will-maker. 

There are some common circumstances where you may need to consider making an application to the Court for a Statutory Will to be made on behalf of a loved one. Perhaps: 

  1. The Will-maker has developed a condition that has affected their memory, thinking and perception (such as Dementia) and their existing Will is now out of date and no longer reflects their wishes; 
  1. A person has suffered a catastrophic personal injury affecting their capacity that has resulted in a compensation payment and they do not have a current Will to deal with what will happen with that money if they die; or 
  1. There is an obvious defect in a Will that the Will-maker does not have capacity to rectify. 

Any person can bring the application on behalf of someone who does not have capacity to make a Will.  The Court can alter only part of the person’s existing Will, or it can make an entirely new Will. 

It is important to remember that an application for a Statutory Will can only be brought if the Will-maker is still alive.  If the person has died, then you may need to make a family provision claim. 

To make an application, you will need to give the Court the following information: 

  • A written statement as to why you are making the application; 
  • Evidence that the Will-maker does not have capacity to make a Will and is unlikely to regain capacity; 
  • An estimate of the size and nature of the Will-maker’s estate; 
  • A proposed draft Will; 
  • Evidence about the Will-maker’s wishes; 
  • Any Wills previously made by the Will-maker; 
  • The likelihood of a family provision claim being made against the Will-maker’s estate;  
  • Any evidence about a charitable gift that the Will-maker may reasonably be expected to make; and 
  • Any other fact that you are aware of that is relevant to the application. 

The above information is usually provided to the Court by way of an affidavit. 

The Court will consider your application as it would any other Court application.  For example, there may be directions hearings where the Court asks you to provide more information. 

The Court understands that in some circumstances you may need to act quite quickly for the Statutory Will to be made, for example if the Will-maker (or you) are quite elderly.  In these circumstances, there are steps you can take to ‘fast-track’ the application so that it is dealt within the space of a few days or weeks. 

If circumstances change later down the track, after the Statutory Will has been made, you can make a further application to the Court to amend the Statutory Will. 

It can be very distressing to think that your loved one’s belonging may not be distributed as they would have wanted after they pass away.  Call us on 1300 654 590 to find out if you may be eligible to make an application to have a Statutory Will made. ​ 

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