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 is to inherit our property.
Because wills are so important, it stands to reason that we can only make a valid will if our mind is capable, and the Will is the expression of a free and capable person. This is the principle of “testamentary capacity” and it is a fundamental requirement for a valid Will.
But what happens when a person doesn’t have the mental capacity to make a Will?
Some of us will lose the ability to update our existing Will, because of illness or injury. 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 as adults before we made one. If we don’t have a Will, our estate will be distributed either according to an old will which might not be suitable any longer, or in accordance with rules developed by the government, in an attempt to fairly distribute in these situations. But these rules can be a hopelessly inappropriate fit and lead to significant injustice.
Fortunately, we can assist you with obtaining orders form the court that an appropriate Will to be made for persons lacking testamentary capacity.
Jeneve’s first court-authorised will application in 2009 was one of the first in Queensland, and possibly, the first application in Queensland for a will for a child. Since then we have made a number of applications to the court for orders for wills for incapacitated adults, including contested applications where the court was satisfied that the will we proposed was appropriate, and ordered that it be made.
We welcome enquiries from anyone with a concern that an inappropriate outcome will occur if a will is not made for a person who cannot make a will. This is part of the specialist services we provide our clients as one of Queenslnad’s leading inheritance law firms.
It is important to know that, the court can order a Will be made only if the person is alive, so it is important to see us as soon as possible so we can help you help the people you love.