What’s a Statutory Will?
Perhaps you have heard the phrase "statutory will" thrown around. But what does it mean? And do you need one? Read our guide to find out more.
We all know what a will entails, but what is a statutory will? A statutory will is a type of will. Essentially, you are creating the will on behalf of an individual who does not have the capacity to create their own. Although creating a will is not an enjoyable task, it has to be done. Ultimately, wills are important as they set out how you would like your estate distributed after you pass away. Read our guide to find out more.
Defining a Statutory Will
In summary, a statutory will is a will which has been made on behalf of someone who does not have the capacity to make a will. ‘Testamentary capacity’ is the legal term for this. If you can prove the person does not have the mental capacity to create their own will, a court will verify the will. This can occur with people who have mental illnesses or intellectual disabilities.
Ultimately, a statutory will is very similar to a typical will. The exception to this is that it is drafted in accordance with any court orders. It is important to note for a will to be valid, the will-maker must be over the age of 18. For more information on the validity of wills, read our guide ‘5 Ways to Ensure That the Will You Make is Valid‘.
In New South Wales, the laws surrounding statutory wills can be found in the Succession Act 2006 (NSW).
When Should You Make a Statutory Will?
As discussed, when a person no longer has the requisite capacity, a statutory will is created. This means they do not have the ability to make informed decisions for themselves as determined by a medical professional. Further, they are unable to communicate their decisions and reasoning for them.
You may need to make a statutory will in a number of circumstances. Some of these may include:
- A child under the age of 18 who has substantial assets
- If a person has an intellectual disability and is likely to inherit a large amount of assets
- If a person has not made a will and has developed an illness effecting their mental capacity such as dementia
- A child that suffers injuries and is awarded with compensation for negligence
How Do I Make an Application?
Do you think you, or someone you know, is eligible for a statutory will? Here’s how you can make an application. First, you should obtain legal representation. This is because you tasked with the job of convincing the court the person does not have capacity to make a will.
Generally speaking, the court will look at certain factors to decide whether a person has capacity. For example, they will look to medical reports from neuropsychologists, psychiatrists or physicians. These will be used as evidence to assess a person’s lack of testamentary capacity. You should also provide evidence from an expert as to the likelihood of the person regaining capacity in the future.
We recommend consulting a Wills Lawyer. Ultimately, you will need information in the form of affidavits such as why that person is unable to make their will themselves.
To conclude, a statutory will is a will made by the court on behalf of a person. This is because the individual does not have the requisite ‘testamentary capacity’ to make decisions for themselves.
Laura is a Legal Intern at Lawpath. She is studying a Bachelor of Laws and a Bachelor of Business Administration at Macquarie University. Laura is interested in Intellectual Property Law and how technology can assist in improving access to justice.