What is a statutory Will?

Published 13 Jun 2019

In the state of NSW, anyone over the age of 18 is able to make a Will, but those who choose to do so must have testamentary capacity. In cases where people over the age of 18 don’t have testamentary capacity, there is another option which offers the chance for wishes and estates to be successfully dispersed when they pass away.

But what is testamentary capacity and what is the other option for fairly dividing an estate?

What is testamentary capacity?

The term testamentary capacity refers to anyone over the age of 18 being of sound mind, memory and understanding at the time of making a Will. A person is regarded as having testamentary capacity if they:

  • Understand what a Will is and its effect.
  • Realise the extent of the property that will be disposed of under the Will.
  • Understand the moral claims they should be considering when deciding who to leave their property to.

For those who don’t meet testamentary criteria, there’s still the chance to make a Will. This is thanks to a change introduced in NSW by the Succession Act 2006, which gives the Supreme Court the power to authorise a Will even when the applicant doesn’t meet the testamentary capacity criteria. These are often referred to as statutory Wills.

Who can apply for a statutory Will?

In the event that a person does not meet the testamentary capacity, an appropriate person can make an application for a statutory Will on their behalf. However, the court must feel satisfied that the applicant is an appropriate person to apply for the statutory Will. Examples of an appropriate person includes:

  • A spouse.
  • A parent, primary caregiver or guardian.
  • Someone who has formal authority to act for the person, such as an attorney.

When should a statutory Will be made?

There are several reasons why an appropriate person may apply for a statutory Will. These include:

  • If a loved one lacks the mental capacity to make their own Will.
  • The vulnerable person has never made a Will before.
  • They have high value assets.
  • A current Will makes inadequate provisions for those caring for the vulnerable person.

In any of the aforementioned instances, it’s important you speak to legal experts to gauge whether you meet the criteria for a statutory Will application. Get in touch with the Contesting Wills team at Gerard Malouf & Partners for more information.

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