A Statutory Will is a Will made for a person by a Court in circumstances where that person does not have the legal capacity to make the Will for themselves.
Applications for Statutory Wills are increasing in South Australia and the Supreme Court had made a number of Statutory Wills in a variety of circumstances. Some people are unable to make a Will either because of conditions such as dementia or intellectual disabilities or illnesses.
Who may apply for a Statutory Will?
The person making the application for a Statutory Will must be an appropriate person to make the application. The Court will consider the nature of that person's relationship with the person for whom the Statutory Will application is being made. Some examples of potential applicants include:
- A spouse;
- A parent of a child who is the primary carer and has a close relationship with the child;
- Relatives who have a relationship with and an interest in the welfare of the person concerned;
- A person who is appointed as the administrator to look after the person's financial affairs.
How is a Statutory Will application commenced?
An application for a Statutory Will is commenced by filing documentation in the court addressing various matters that are set out in the relevant legislation which include:
- Why the applicant is the appropriate person to make the Statutory Will application;
- Why the person is unable to make a Will for themselves;
- Details of the person's financial circumstances;
- What would happen to the person's estate if they died without a Will (i.e. upon intestacy);
- The proposed terms of the Will;
- Why the proposed Will is one that the person would make if they had capacity to do so.
As part of the process, the Court will require that the application is served upon those who may have an interest in the case such as those who would benefit under the intestacy laws.
If you are considering making a Statutory Will application you should obtain legal advice as soon as possible. Call us on 08 8523 8400 or email is at firstname.lastname@example.org.
"Statutory Wills" by Nick Pullman (14/07/2015)