Today, the court is empowered under section 21 of the Succession Act 1981 (Qld) to authorise a will to be made on behalf of a person who does not have the capacity to independently make a will.
Making sure all information in relation to the proposed will maker (who has lost capacity) is readily available for the court to review is crucial. Careful consideration must be given to all of the circumstances of the proposed will maker’s life.
The recent case of JW v John Siganto as the litigation guardian for AW and CW  QSC 300 is an example of how the court will explore the relationships of the proposed will maker before making an order for a court-authorised will.
The facts of this case are as follows:
The issue in this case was that RW did not have a will. This meant that if RW was to pass, under the laws of intestacy (where someone dies without a will), RW’s estate would pass to his two children in equal shares. This would mean that RW’s minor children would stand to inherit some $4.5 million each at an age where they would not be sufficiently mature to handle that amount of money.
RW’s father made the application for a court-authorised will for RW.
The application was successful and a court-authorised will was granted for RW. The terms of the will were:
In reaching the decision, the court explored issues like whether RW’s previous de facto partner would be entitled to make a claim against RW’s estate and whether RW’s parents should receive a benefit from his estate.
If you are in circumstances where a statutory will is necessary, there are a number of factors which must be considered which could impact on whether the court will order the proposed will. If you are seeking assistance in a court-ordered will, please do not hesitate to contact me.