The purpose of a Will is to enable a person (Testator) to give instructions as to how they wish their assets to be distributed after death.
To provide Will instructions a Testator must have testamentary capacity, which means that they:
- Understand the nature of a Will and its effect;
- Understand the extent of the property of which they are disposing under the will;
- Are aware of the persons whom they would ordinarily be expected to provide; and
- Are not suffering from a mental injury or illness which would cause them to deal with their property in a way that they wouldn’t have had such illness or injury not existed.
What happens if a Testator does not have testamentary capacity?
Can they still make a will?
The short answer is no.
However, a third party is able to make an application to the Supreme Court on behalf of a Testator lacking testamentary capacity for permission to draft a Statutory Will.
Person(s) able to apply for permission to make a Statutory Will include (but are not limited to):
- A spouse of the testator;
- A person appointed as an Attorney, administrator or guardian; or
- A relative or friend who has a close relationship with the testator.
If permission is granted, the Supreme Court will then draft a Will which accurately reflects the likely intentions of the person if he or she had testamentary capacity.
To determine what the likely intentions of a testator are, the Court considers factors such as the size and nature of the estate as well as the potential beneficiaries and their relationship to the testator.
Given that the obligation to provide the Court with relevant evidence lies with the applicant, we strongly advise that you obtain expert legal advice before undertaking any application for Statutory Wills.
For advice call Williams Barristers and Solicitors, Adelaide will lawyers today on (08) 8451 9040.