Avoiding Estate Litigation – Why A Statutory Will Might Be Your Best Answer

About statutory wills

To put it simply, a statutory will is a Will or Codicil made by the Court on behalf of a person that lacks testamentary capacity.

The legal framework

In April 2006, Queensland introduced a statutory framework for the manner in which the Court may make a statutory will. An application, usually by a litigation guardian, on behalf of the adult is made to the Court under the provisions of the Succession Act 1981 (Qld).

The circumstances in which the Court may make an order are summarised as follows:

  1. The person must lack “testamentary capacity” and be alive when the order is made;
  2. The applicant is the appropriate person to seek the orders;
  3. Adequate steps have been taken to allow representation of other persons with a proper interest; 
  4. The proposed Will or Codicil, would have been made by the testator if the person had testamentary capacity; and
  5. The Court considers the proposed Will or Codicil is suitable.

However, it is only when an order for leave to proceed is made that the Court will proceed to hear the substantive application. The court must first be convinced the circumstances warrant such application.

There are a number of factors that the Court considers on the hearing of an application for leave. The full list is set out in the legislation. Some of the factors include evidence of the lack of testamentary capacity (and the likelihood of the person ever regaining capacity), the size and character of the estate, evidence of the person’s wishes and the likelihood of a family provision application (claims on the estate).

When should you consider making an application?  

The decision in Re APB, ex parte Sheehy [2017] QSC 201 is a great example of a situation when an application to the Court for a statutory Will should be made.

The case involved a 91 year old male, who had a very large estate.  The adult (referred to as APB in the judgment) held assets valued at approximately $70,000,000. He had a significant interest in a shopping centre which was operated under a joint venture agreement. He wanted the venture to continue after his death.

There were unusual circumstances leading up to the application, involving a number of people befriending the adult when he was vulnerable, with the intention of advancing their own interests. He was alienated from family and friends. There was also evidence of Will making without the requisite capacity.

The Court considered whether APB would make provision from his estate for those people. It also considered the amount of provision for his three children, their respective spouses and his grandson. 

Due to the complexity of the estate assets, including a property joint venture, there was an issue whether there should be one or two testamentary trusts established by the Will and who was to be appointed as trustee and executors.

The case shows, and it was recognised that, had these issues not been determined prior to the adult’s death, it is most likely that costly and complex litigation would have ensued. Both the adult and the parties were clearly better off resolving the issues before the courts whilst the adult was alive and to preserve and protect his assets.

Take away points

So, whilst some may feel daunted by the process of applying to the Court on behalf of a person without testamentary capacity, for an Order authorising a Will, it may save loss of potential assets and avoid disputes in the longer time.

This is particularly so in circumstances where there are multiple parties seeking to benefit from an estate, the nature of the assets are inherently complex and there is evidence of a lack of testamentary capacity.

If you would like to fund out more, please contact either Elizabeth Ulrick or Tony Crilly at Perspective Law on 07 3839 7555.

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