Wills are important documents in which we can appoint the right person to be in charge of our affairs after we die, and in which we can leave binding written instructions about who will be in charge of our estate and who is to inherit our property after we die.
It stands to reason that a will should be the expression of a free and capable person. This principle is a fundamental requirement for a valid will. It is called “testamentary capacity”.
But what happens when a person doesn’t have the ability to make a will?
Some of us will lose the ability to update our existing will, when our family circumstances have changed and our existing will is no longer the will we would make to reflect our changed circumstances. This can happen through injury or illness.
And some of us will never have the ability to make a will either because we were born without capacity or we lost the ability to make a will before we became old enough to make a will.
If we don’t have a will our estate will be distributed according to rules developed by the government in an attempt to fairly distribute in these situations. These are called the Rules of Intestacy. But these rules can be a hopelessly inappropriate fit and lead to significant injustice.
A common example of this is that of a child who has been catastrophically injured at birth, for which injuries the child has received significant financial compensation. The child has been cared for by just one parent following marital separation. That parent has devoted herself to the care of the child, often with the assistance of the child’s siblings, while the other parent, for one reason or another, has contributed little or nothing to the care of the child.
In this example, if the child dies, the estate will be shared equally between both parents, even though one parent has had no relationship with the child. And if the caring parent dies before the child dies, then the non-caring parent inherits everything, rather than sharing the estate with siblings who might have maintained a relationship with and cared for the injured child.
This is not the result that the child would want.
We are lucky in Queensland (and all other States and Territories) that we can now ask the Supreme Court to order that a will be made for a person without capacity – wills which the person would have made if the person could make a will. It is perfectly appropriate that the person with the most to benefit make the application, that is, the person who will be the major beneficiary of the proposed will.
The court can order a will be made only if the person is alive so it is important to get advice from an appropriately qualified solicitor at an early stage.