The family’s founder is 91 and has advanced dementia. His last will was made in 2004, before a divorce, two grandchildren, the sale of the company and the purchase of three Melbourne properties. It leaves most of the estate to a person who has since died. He can no longer understand what a will is. Is the family stuck with it?
The statutory will
In Victoria, the Supreme Court can authorise a will to be made, changed or revoked on behalf of a person who lacks testamentary capacity. The applicant first needs the court’s leave, and must give the court:
- evidence that the person lacks capacity and is unlikely to regain it
- a draft of the proposed will
- evidence of the person’s wishes, values and relationships, so the court can be satisfied the proposed will is, or reasonably might be, the will the person would make if they had capacity
- details of who would be affected and whether they have been notified.
The court acts for the person who has lost capacity, not for the family members bringing the application. Applications are often opposed, and they cost money, but they can prevent a far larger dispute after death.
What an attorney can and cannot do
A financial attorney under an enduring power of attorney manages the person’s affairs while they lack capacity. The attorney cannot make a will for them, and generally must not act against the principal’s interests or in their own interest. Gifts are limited to what the law and the document allow. Many disputes after death are really about what the attorney did before it, such as transfers to themselves, sales of property and changes to joint accounts.
Planning ahead
- Review your will regularly while you have capacity, especially after major life and business events.
- Appoint attorneys you trust, consider appointing more than one, and require them to keep accounts.
- Keep a record of your wishes and reasons. It is the best evidence a court can have if a statutory will is ever needed.
Frequently asked questions
What is a statutory will in Victoria?
A statutory will is a will that the Supreme Court of Victoria authorises to be made, changed or revoked on behalf of a person who lacks testamentary capacity. It is used where a person can no longer make a valid will themselves, for example because of advanced dementia, and their existing will no longer reflects their family or their assets.
How do you apply for a statutory will in Victoria?
The applicant must first obtain the Supreme Court’s leave. The court then needs evidence that the person lacks capacity and is unlikely to regain it, a draft of the proposed will, evidence of the person’s wishes, values and relationships, and details of who would be affected and whether they have been notified. The court acts for the person who has lost capacity, not for the applicant.
Can an attorney make a will for someone with dementia?
No. A financial attorney under an enduring power of attorney manages the person’s affairs while they lack capacity, but cannot make a will for them. The attorney generally must not act against the principal’s interests or in their own interest, and gifts are limited to what the law and the document allow. Changing the will of a person without capacity requires a court application.
How can I reduce the risk of my family needing a statutory will?
Review your will regularly while you have capacity, especially after major life and business events such as a divorce, new grandchildren or the sale of a company. Appoint attorneys you trust and require them to keep accounts. Keep a record of your wishes and reasons, which is the best evidence a court can have if a statutory will is ever needed.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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