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Statutory Wills for persons who lack capacity

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What happens to people who cannot make wills because of brain damage, intellectual disability, dementia, severe cognitive impairment or some other illness that affects their testamentary capacity? In such situations it is possible to ask for a Court to make a will. This is usually a good idea where the intestacy provisions are inadequate. For example, where a parent has caused injury to a child and that child will never have capacity to make a will, a Court can write a will so that the child’s estate would go to someone else such as a sibling, as opposed to the parent in the case of intestacy.

Two scenarios may arise regarding testamentary capacity:

  • A person may have never had capacity or lacked it from an early age (for example, they are born with severe brain damage);
  • Or a person previously had capacity (and perhaps even made a will) and they later lost capacity (for example due to dementia).

If you would like advice on issues arising from statutory wills including disputes regarding mental capacity, call our obligation-free legal advice line or complete the contact form.

The Law on Statutory Wills

Legislation on statutory wills varies between states. Generally speaking though, the legislation requires that it is first established that the testator lacks testamentary capacity; secondly the will to be made by the Court should be in some way like what the testator would have wanted if they had the capacity; and thirdly, it is reasonable for the court in all the circumstances to make the order for a statutory will.

Medical evidence will be needed to establish that the person lacks capacity, that they cannot understand the issues relevant to making a will and the distribution of their estate. The most difficult problems usually arise in trying to determine what the testator would have likely wanted, on the balance of probabilities.

Where a person had capacity and since lost it, the Court may look at any previous will as an indication of the testator’s preferences and choices as to provide evidence of what they would likely do now in the changed circumstances. Their relationships, personality, and size of the estate can be considered.

The Court is faced with greater difficulties where the person lacked capacity to begin with. The Court may consider that intestacy would adequately provide for all the reasonable claims on the estate, or the Court may make an assessment that the person may have decided to make a will and then make a decision as what the will would have contained

Legal Advice from a Wills Solicitor

As this is a complex area of law, it is recommended that advice be sought from an experienced wills solicitor. If you have concerns regarding a loved one’s lack of capacity to make a will and how their estate will be distributed upon their death, you may wish to seek legal advice as to whether a statutory will should be made.

Our will solicitors handle complex will dispute matters and most cases are handled on a No Win No Fee basis. To find out if we can assist you, please contact our obligation-free service.




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