In order to make a will, you need to have what is called “testamentary capacity”.  This requires you to understand what you are doing, understand your assets and who might have a claim on those assets. 

For many years, people who did not have this capacity could not make a will.  Since 2006, the Court has had power to make a will for a person who does not have capacity to do it themselves. 

Court ordered wills can be very beneficial and are slowly becoming more common in certain situations.  They can be very relevant where a person (an adult or a child) has suffered a significant injury leaving them without testamentary capacity and they receive a compensation payment.  In these circumstances, it needs to be considered what would happen to these assets when that person passes away.

It may be that an existing will or the rules of intestacy (the legislative rules that apply when a person dies without a will) are not appropriate to the family circumstances. For example, under the rules of intestacy the parents of a child who dies benefit equally from any funds the child may have.  This may not be appropriate if only one parent has cared for the child. 

An application to the Court is needed to have a will made for a person who lacks testamentary capacity.  A number of criteria have to be met in these applications. The Court must be satisfied that the will suggested is one that the person may make if they could and that it is appropriate for the will to be made in the circumstances.

McInnes Wilson Lawyers’ Estate Law Team has recently successfully obtained court ordered wills for persons who lack testamentary capacity. Both these applications were made to avoid the person dying without a will.

  1. James*:  At 9 years of age, James was seriously injured in an accident, resulting in him suffering severe and permanent deficits.  He subsequently received compensation for his injuries.  Following the accident, James came to be cared for by his aunt.  If James were to die without a will, his estate would be divided between his parents who were no longer involved in his life and no benefit would pass to James’ siblings or his aunt who cared for him.  To avoid this situation we applied to the Court for a will to be made for James.  The application was successful.
  2. RKC v JNS [2014] QSC 313: SKC was born with severe health conditions as a result of a traumatic birth.  She received compensation for the injuries sustained at birth.  SKC has been cared for since birth by her mother and grandmother but has had no contact with her father. We assisted SKC’s mother in applying for a court ordered will to avoid 50% of SKC’s estate passing to her father which would occur if she died without a will.  This application was successful and a will was made for SKC.

In both these cases a court ordered will was appropriate as the testator’s lacked capacity, had sufficient assets to warrant the costs of the application and the laws of intestacy would not have been appropriate in their circumstances.  The Court was satisfied that in each case the will proposed was a will that the testator would or may have made if they had capacity.