Understanding Statutory Wills in Victoria

Most people assume that if a person loses cognitive capacity to make a will, it is simply too late to protect their legacy. Without a valid will, their estate would typically fall under “intestacy” laws, which follow a rigid, one-size-fits-all formula for distributing assets among next-of-kin. You can find a guide to the Victorian’s intestacy laws here.

However, under the Wills Act 1997 (Vic), the Supreme Court has the authority to “step into the shoes” of a person without capacity and authorise a will on their behalf. This legal mechanism ensures that a person’s likely wishes are honoured, even when they can no longer prepare a will for them themselves.

What is a Statutory Will?

A statutory will is a document authorised by the Court for a person who lacks testamentary capacity. Unlike a traditional will, which is signed by the testator, a statutory will is signed by the Registrar of Probates and sealed by the Court. It is typically sought by family members, carers, or guardians who believe that the existing state of affairs (which may include no will or an out of date will) would lead to an outcome that the person would not have intended.

To authorise such a will, the Court must be satisfied that:

1. Lack of testamentary capacity:
   The person must be unable to understand the nature and effect of a will, the extent of their assets, or the claims of those who might expect to benefit from their estate.
   
   
2. Likely intentions:
   The proposed will must reflect what the person’s intentions “might reasonably be expected to be” if they had capacity.
   
   
3. Reasonableness:
   It must be reasonable in all the circumstances for the Court to make the order.

When is a statutory will appropriate?

There are many circumstances where a statutory will may be appropriate, as illustrated by the following cases:

• In Bailey v Richardson [2015] VSC 255, two friends who had cared for a 90-year-old woman with dementia for nine years applied for a statutory will. Without it, her estate would have gone to an estranged niece she hadn’t seen in decades. The Court authorised a will leaving the estate to the friends, as it was found that reasonable people would think there was a fairly good chance this reflected the woman’s likely wishes.
  
  
• In Plowright v Burge [2005] VSC 490, a woman suffered a severe brain injury in an accident in 1997, and her brother sought to replace her 1994 will to reflect her likely intentions to exclude her former partner, whom she had separated from prior to her accident. The Court authorised a will leaving her estate to charitable causes.

In conclusion

Losing capacity does not have to mean losing control over how a person’s estate is ultimately distributed. Statutory wills provide a vital safeguard against the rigid outcomes of intestacy, allowing the Court to uphold what a person’s wishes were likely to have been, rather than defaulting to a formula that may produce unjust or unintended results.

How we can help

Moores has extensive experience in successfully applying for and defending statutory wills. Our Wills, Estate Planning & Structuring team can assist you in ensuring that your loved one’s estate does not end up somewhere that was unintended.

Contact us

Please contact us for more detailed and tailored help.

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^{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}