What is a Statutory Will?

Emily suffers from a severe disability, affecting her cognitive abilities and preventing her from making a will.

Emily’s condition also means that she will likely have a reduced life expectancy.

Emily receives a substantial inheritance from her uncle, on her mother’s side.

Emily’s mother has been her sole carer since birth and has dealt with the challenges arising from her disability.

Emily has had no contact with her father, nor his side of the family.

Emily’s mother is concerned about what will happen to Emily’s inheritance, if she passes-away without executing a will.

If Emily passes-away without making a will, the laws of intestacy which apply in her circumstances, mean that her biological father would receive half of her substantial estate.

Her mother believes that Emily would not wish for this to occur and that such a result would be incredibly unjust.

However, legislation permits a “statutory” will to be made on Emily’s behalf, by way of an application to the Supreme Court of New South Wales.

The application requires the briefing of a barrister and the filing of supporting affidavits from family members, care workers and medical professionals.

It is not a cheap process, but given the size of Emily’s inheritance, her mother views the costs as warranted.

A solicitor, specialising in these matters, drafts a will on Emily’s behalf, making provision for her mother and her two siblings.

The draft will form part of the application to the Court.

Emily’s father is served with notice of the application and he does not participate.

Ultimately the Court grants the application and a will is made on Emily’s behalf on the basis that in the Court’s view, if Emily had capacity to make a will, she would make a will primarily making provision for her mother and also her siblings.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at 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