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Protecting the rights of your loved ones when they are no longer able to protect their own

By Peter Ray | May 11, 2016 | 0 Comment

Does your loved one suffer from Alzheimer’s, Dementia, or some other form of mental incapacitation and is no longer legally capable of changing or making a Will? Do they have a valid Will? Do they need to change their Will?

If a relation or friend you are close to has been affected by Alzheimer’s, Dementia, Brain Trauma or some other form of mental incapacitation, they will probably have lost their legal capacity to make or change their Will. If their circumstances have changed since becoming incapacitated, their estate might not be dealt with in a way that they would want it to be unless a new Will is made for them.

In 2007 our Courts were given the power to make or change Wills for incapacitated people while they are still alive. These are called ‘Statutory Wills’

What is a Statutory Will?

Statutory Wills are also referred to as ‘court-authorised wills’ or ‘court-made wills’. They are a relatively new development in Australia. In WA they were introduced in 2007 being Part XI, Division 1 amended section 40 of the Wills Act.

When may a Statutory Will be needed?

There is a wide range of possible scenarios for a person who has lost testamentary capacity. For example:

  • It is clear that their existing will is out of date and needs to be updated, but they lack the necessary capacity to make their own will.
  • A person’s existing will includes a gift of their house to a particular beneficiary, but the person has since moved into a nursing home and the house has been sold.
  • There is some technical defect in a person’s will, which will prevent it operating in the way they intended.
  • A person has a will but it could be structured in a more tax-efficient way, to reduce the overall tax burden.

In WA an application will be made by an appropriate person on behalf of a person who does not have testamentary capacity.

The Supreme Court has the jurisdiction to make an order authorising the making or alteration of a Will in specific terms approved by the Court, or the revocation of the whole or any part of a Will on behalf of a person who is living but lacks testamentary capacity.
There is a ‘core test’ that must be met, in every case. The Court needs to be satisfied that the proposed will is one that the proposed testator, if he or she had testamentary capacity, would likely have made.

Conclusion

In light of the above, what would normally be put in the “there is nothing we can do” basket, there is now an opportunity to implement an effective estate plan that the person who made the Will may have implemented if they had capacity, due to a change in circumstances since they made their Will.

To obtain advice specific to your situation and to find out if a Statutory Will could be a solution for you, contact Peter Ray at Slee Anderson & Pidgeon on (08) 97 920 920.


The contents of this publication are not legal advice to anybody who receives it and should not be treated as legal advice.  You should not take any action following reading this publication without legal advice concerning its application or relevance to your own circumstances.

Filed under: Wills

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