Many people assume that once a person loses capacity, nothing can be done to update their will, but that is not always correct.
In New South Wales, the Supreme Court has the power to authorise a “statutory will” for a person who cannot make or change their own will because they do not have testamentary capacity. Examples of when someone might have lost capacity may include when a person has:
– dementia;
– suffered a stroke or serious brain injury;
– an intellectual disability and has never had testamentary capacity;
– has a psychiatric condition which affects decision making; or
– has lost capacity due to illness or age.
A statutory will can prevent unfair outcomes, avoid intestacy and ensure that a person’s estate is distributed in a way that reflects what their wishes would likely have been, if they still had capacity.
In what situations should I consider making an application for a statutory will?
Some common situations that arise where people might need a statutory will, include:
– The person’s existing will is out of date because their spouse or a beneficiary has died;
– The person has become estranged from family;
– Their assets have changed significantly; or
– The person does not have a will.
If a person dies without a will, their estate is distributed according to the intestacy provisions of the Succession Act. This may result in assets passing to people the person would not have chosen.
Making an application for a statutory will can result in:
– Reduced risk of family provision claims;
– Avoiding expensive court proceedings;
– Swift administration of estates
– A Will that reflects the person’s wishes.
When should I seek legal advice about whether a statutory will is right for my loved one?
Families should seek advice as soon as concerns arise regarding capacity, and particularly if:
– The person owns substantial assets;
– There is no valid will;
– The existing will appears outdated;
– Family members are in conflict; or
– There has been a recent diagnosis of dementia or another condition relating to the person’s capacity.
For families caring for an elderly relative or a loved one who has lost capacity, obtaining advice early can make a significant difference to preserving the person’s intentions and reducing the risk of costly disputes after they pass away. Contact Streeterlaw today on (02) 8197 0105 or by email at contact@streeterlaw.com.au so we can provide you with tailored advice about whether a statutory will application should be considered for your loved one.
