Statutory wills: when the Supreme Court can make a will for someone who has lost capacity

For Australian families navigating a parent or partner's cognitive decline, the question of how to handle their will and estate plan often arises after capacity has already begun to slip. By the time the family realises a will needs to be made or updated, the person may no longer have testamentary capacity — they no longer understand the nature of a will, the extent of their property, the persons who might reasonably expect to benefit, or the implications of making a will. The will-making mechanism that worked for everyone else in their life is no longer available to them.

For most families, this is also the point at which they discover what an enduring power of attorney can and cannot do. An attorney under an enduring power of attorney has substantial financial powers — they can manage bank accounts, sell property, pay bills, manage investments. What they generally cannot do is make or change a will on the principal's behalf. The will is a personal act, and the personal act has been lost to the cognitive decline. So if the person's existing will is now outdated by changed circumstances (an estranged spouse named as beneficiary, a deceased beneficiary, a charitable bequest to an organisation that no longer exists), or if there is no will at all and intestacy would distribute the estate in unintended ways, the family is faced with the prospect of working with an estate plan that does not match what the person would have wanted.

This is the situation in which the statutory will mechanism applies. A statutory will is a will made by the Supreme Court of an Australian state or territory on behalf of a person who lacks testamentary capacity. The court considers evidence about the person, their circumstances, their prior intentions, and the proposed will. If satisfied of the relevant tests, the court orders the will into effect. The will is signed by an officer of the court on the person's behalf, and it operates at the person's death in the same way as a will the person had personally made.

The framework is set by state and territory succession legislation. The detail varies, but the broad architecture is similar across Australia. The court must be satisfied of three things: that the person lacks testamentary capacity (typically supported by medical evidence from a treating geriatrician, neurologist, or psychiatrist); that the proposed will reflects what the person would (or might) have made if they had capacity (supported by evidence of prior intentions — earlier wills, conversations, life patterns, family circumstances); and that it is appropriate to make the will in the circumstances.

The mechanism is most commonly used in four scenarios. First, where a person has never made a will and intestacy would not match what they would have wanted — perhaps the family includes a long-estranged spouse who would inherit substantially under intestacy, while the close family who provided care would receive comparatively little. Second, where the existing will is outdated by changed circumstances — a beneficiary has died, the testator has remarried (which automatically revokes a will in some jurisdictions), or family relationships have shifted dramatically since the will was made. Third, where there are concerns about the validity of an existing will — perhaps it was made when capacity was already in decline and there is a possibility of undue influence; a statutory will, made by the court with full evidence, can replace the questionable will and reduce post-death litigation risk. Fourth, where the will is broadly correct but specific gifts no longer make sense — a property left as a specific gift that has since been sold, for instance.

The application process is significant work. A solicitor experienced in succession law drafts the proposed will, gathers medical evidence about capacity, assembles documentation of the person's prior intentions (earlier wills, letters, conversation notes, advice meeting records), and lodges the application with the Supreme Court. Other interested parties — family members, beneficiaries under any existing will — are typically notified and may participate in the proceedings. The hearing itself may be before a Master or Associate Judge initially, with a substantive hearing before a judge. The process can take several months from instruction to final order. Costs typically run from $20,000 to $80,000 or more depending on complexity, jurisdiction, and whether issues are contested. The costs are paid from the person's estate.

For families currently navigating a relative's cognitive decline, several practical implications are worth absorbing. Earlier action produces better outcomes. Capacity decline is progressive. The further it has gone, the harder it is to reconstruct what the person would have wanted, and the more contested the application becomes. Where there is still some capacity remaining and the person can express clear preferences, those preferences become valuable evidence for any subsequent application. Where capacity has been lost entirely, the application proceeds on the basis of historical evidence — earlier wills, conversations the person had with family or advisers, letters of intent, life patterns. Documentation matters enormously. Records of prior meetings, conversations about beneficiary intentions, and any expression of estate planning preferences become evidence. Families with active adviser relationships often have substantially richer documentation than those without. Family dynamics need attention. A statutory will application reveals the proposed disposition to other family members, who must be notified. Where the proposed will differs materially from the existing will (or from intestacy outcomes), the application can trigger family conflict. Sometimes a family conference or mediation before the formal application is the right path; sometimes the application itself becomes the forum where the family's competing positions are tested.

The statutory will is distinct from related concepts. It is not the same as a family provision claim, which is a post-death mechanism for an eligible person who feels inadequately provided for. It is not the same as a caveat on probate, which prevents probate of an existing will pending challenge. It is not the same as administrative orders under guardianship law, which deal with lifetime decisions rather than testamentary disposition.

For most retirees and their families, the best approach is to make the statutory will mechanism unnecessary by ensuring that wills are current and capacity-tested while there is no doubt about capacity. For families already past that point, where capacity has been lost and the existing arrangements are materially out of step, the statutory will is a remedial mechanism that can produce a substantially better outcome than the alternative. It is specialist, expensive, and slow — but it works, and where it is appropriate, it is worth knowing about.