IN 1983, Richard made a Will in which he gave the whole of his estate to his brother James. Richard did not have any children at the time, but he wanted to make a Will that he wouldn’t have to update again.

In 1993, Richard suffered a debilitating injury at work and was in a coma for several months. Richard never recovered fully from his injury and had severe and permanent cognitive impairment, to the extent that he was incapable of managing his personal and financial affairs or of making a Will.

James was appointed as his Guardian and Financial manager and became Richard’s full-time carer in 1994.

Richard had never been in a long-term relationship, nor did he have any children and his injuries made it virtually impossible for him to have any children in the future.

In June 2023, James was diagnosed with cancer and was concerned about what would happen to Richard’s estate, should he pre-deceased Richard.

James’ Lawyer advised him that Richard’s estate, now worth around $1.5 million, would pass to Richard’s cousins Rhi and Joy, who were both in their mid-80s.

If Rhi and Joy also predeceased Richard, his estate would go to the government.

James brought an urgent application in the Supreme Court to have a Statutory Will made.

The Court found that Richard did not have testamentary capacity to make a Will but that if he did, Richard would make a Will giving the whole of his estate to James, if James predeceased him, to Rhi and Joy then to Rhi and Joy’s children, should they also predecease him.

The Court orders the making of a statutory Will in these terms.

This case highlights the importance of seeking legal advice early if you are caring for someone who lacks the capacity to make a Will and ensuring that their estate planning is in order.

Thank you to Jamie Visco for his assistance with this column. Email Manny Wood, Principal Solicitor of TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor