Many people lose the ability to make or change their wills due to physical or mental disability. As a result, their assets can end up in the hands of people that they were not in-tended for, such as an estranged relative or the government.
If you have a legitimate interest in the affairs of an incapacitated person, you can apply for a “Statutory Will,” which is a will that is made, altered or revoked by the NSW Supreme Court.
On such an application, the Court will ask the question: “If the incapacitated person had the ability to make or change the will themselves, what would that will be?”
In one case, the brother-in-law of a 93 year old woman successfully applied for a Statutory Will making him the executor and beneficiary of her estate. The woman’s original will left her assets to her sisters who predeceased her. Unfortunately by this time, the woman was suffering from dementia that prevented her from changing her will. Based on evidence of their close family relationship, the Court decided that she would have preferred her estate go to her brother-in-law rather than to the government and made orders for a statutory will.
Statutory Wills can also be made for people who have never had the ability to make their own wills. For example, an application was brought on behalf of an 11 year old boy who suffered from Shaken Baby Syndrome, which left him with severe brain damage. He was awarded $50,000 in victim’s compensation and placed in the care of DoCS. To prevent this money from going to the boy’s parents, the Court granted a Statutory Will naming his sister as the beneficiary.
If you require advice on Statutory Wills, contact us for advice.