January 10, 2018

If you have a loved one who doesn’t have the ability to make a will, you may be faced with some serious issues. For example, if that person has a large estate, what can be done to ensure that after their death, it’s distributed in the way that person would want? This was the issue recently considered by the Supreme Court when it had to decide whether to make a will on behalf of a person who had no capacity to do so.

Statutory Will: What happens if your loved one can't make a will?

Background – Statutory wills

RJ was a 31 year old man. As a child, he had been diagnosed with autism, intellectual impairment and obsessive compulsive disorder.  His mother had been his primary carer since birth. He’d had nothing to do with his father since he was a newborn baby.

Since 2005, RJ had resided at a government-operated facility for people with intellectual disabilities. His mother continued to provide a significant amount of care to him.

In 2010, he escaped from the facility and fell from a bridge, causing significant and permanent brain and spinal injuries. The South Australian government paid him $3.2 million in compensation.

After the accident, RJ lived in supported accommodation in Murray Bridge.

RJ’s mother applied to the Court to have a statutory will made on his behalf. In the lead-up to the hearing, the Court appointed a litigation guardian, who was an independent lawyer. The litigation guardian’s role was to protect the interests of RJ.

What is a statutory will?

A statutory will is a Court-made will. It is made on behalf of someone who can’t make their own will because they don’t have legal capacity. This means that they don’t have the ability to understand what the will is, what it means to make a will and/or the implications of making the will. Often, this type of incapacity arises from intellectual impairment, for example dementia.

When deciding whether to make a statutory will, a Court will try to work out what the person would have wanted, if they had capacity to make a will for themselves.

South Australian laws require that the situation meet specific criteria before a Court can agree to make a statutory will. The Court must be satisfied that:

  • The person doesn’t have capacity to make the will.
  • The proposed will reflects the person’s likely intentions.
  • It is reasonable to make the will.

The Court must also take into account:

  • Any evidence of the person’s wishes.
  • The likelihood that the person may later have testamentary capacity.
  • Any previous wills made by the person.
  • The interests of any person who might be a beneficiary if the person died without a will.
  • The interests of anyone who cared for the person or provided emotional support.
  • Any gift that might be reasonable (for example, to a charity).
  • The size of the estate.


The mother was asking the Court to make her the beneficiary of 75 percent of the estate. LT was her companion and she sought orders that:

  • LT be named as beneficiary of 25 percent of the estate.
  • If LT predeceased the mother, she would inherit his share.
  • If she died, RJ’s niece and nephew would inherit the mother’s interest.
  • If the niece and nephew died, the estate would go to various charities associated with RJ’s illnesses and conditions.

The relationship between the mother and LT was somewhat unusual. They lived together as companions but didn’t share an intimate relationship. She cared for him because he had suffered a brain aneurism and a damaged knee. He provided her with companionship and support. He had a close relationship with JR, visited him regularly and took him on outings. The evidence was clear that JR saw him as a father figure. LT had been in JR’s life for 13 years.

JR’s father had been informed of the proceedings but wasn’t interested in claiming an interest.

The Court said that there was no dispute that JR lacked capacity to make a will. It also found that it was appropriate to make a statutory will because:

  • The estate was a significant size.
  • JR lacked capacity.
  • It wasn’t appropriate for the estate to be administered in intestacy (meaning without a valid will) because the law required that half of the estate would pass to JR’s father.
  • If JR had capacity, it is likely that he would have excluded his father because he never knew him.

The Court noted that JR had never had legal capacity and would never have legal capacity. This made it more difficult to work out what he would have wanted to do with his estate because the Court couldn’t look to any prior conduct for indications about how he might have made a will.

It decided that because JR viewed LT as a father figure, he would have wanted to provide for LT. It also decided that because the mother had cared for him his whole life, she should inherit most of the estate. It said that a split of 75 percent to the mother and 25 percent to LT was appropriate.

It also said that the mother’s suggestions of default beneficiaries should those bequests fail, was appropriate.

It approved the statutory will and made orders for the will to be executed on JT’s behalf.

What does it mean?

A court will always be cautious in deciding whether to make a statutory will on someone’s behalf. It will assess the situation extensively and undertake a delicate balancing process to try and work out what the person would have done, had they been able to make a will themselves.

If you believe that a friend or loved one should have a statutory will, you need legal advice from an experienced wills and estates lawyer. The process isn’t straightforward, but it’s always a good idea to check. In this case, the mother had spent her whole life caring for her son, probably without having the time or the funds to properly plan for her retirement. The statutory will meant that she could have some peace of mind about her financial security into retirement and old age.

If you have questions about statutory wills, Websters Lawyers has a team of outstanding wills and estate lawyers who can assist you. Contact us today for a free initial consultation to find out more.

In the matter of R, J [2017] SASC 153 (31 October 2017)