When a Court Can Make a Will in Queensland
We all know the importance of having a Will. It’s the final word on who gets the house, the car, and the family heirlooms. But what happens if a loved one loses the mental capacity to make a Will before they get around to it? Or what if a child receives a multi-million-dollar medical negligence settlement, but, because they are a minor with a profound disability, they can’t legally say where that money should go if the worst happens?
In the past, these situations often led to intestacy—a default legal formula in which the government decides who inherits what. Today in Queensland, there is a powerful legal safety net: the statutory Will.
As succession lawyers, we see these cases as a way to protect a person’s dignity and their likely intentions. Here is a quick guide to how the court can step in to make a Will when the person themselves cannot.
What is a Statutory Will?
To put it simply, a statutory Will is a Will made or altered by the Supreme Court of Queensland for a person who lacks the “testamentary capacity” (the mental ability) to do it themselves.
Usually, to make a Will, you must be over 18 and of sound mind. You need to understand what you own, who you ought to provide for, and the impact of the document you’re signing. If someone can’t meet those requirements—perhaps due to advanced dementia or a traumatic brain injury—the court can step into their shoes.
When is a Statutory Will Necessary?
You may wonder, “Why bother with a court application?” The reality is that the default intestacy rules are often blunt instruments that don’t fit the nuances of modern family life. A statutory will in QLD is often sought in specific scenarios like these:
The Lost Capacity Case: An elderly parent has an outdated Will leaving everything to a spouse who has already passed away, or to a child they haven’t spoken to in 20 years. Because they now have dementia, they can’t update it.
The Nil Capacity Case: A child or young adult who has never had the capacity to make a Will (perhaps due to a birth injury) receives a large compensation pay-out. Without a Will, that money might go to an estranged parent who played no role in their care.
The Blended Family Friction: A person’s circumstances change—maybe they’ve entered a new de facto relationship—but they lose capacity before they can update their Will to include their new partner.
How Does the Court Decide?
The court doesn’t just guess or pick names out of a hat. When considering statutory Wills, the Supreme Court of Queensland applies a core test: Is the proposed Will one that the person would likely have made themselves if they had the capacity?
To answer this, the court looks at a mountain of evidence, including:
Past Wishes: Did the person ever mention what they wanted? Did they have an old, unexecuted draft of their Will?
Relationships: Who are the people they care about? Who provides their daily support?
Charitable Habits: Did they always donate to a specific Sunshine Coast charity?
Size of the Estate: Is there enough money to provide for everyone fairly?
Who Can Apply?
While the law allows any person to apply, the court must be satisfied that the applicant is an “appropriate person.” Typically, this is a spouse, a parent, a close relative, or a long-term carer. In some cases, a solicitor or a court-appointed administrator might lead the charge.
The process is thorough. All interested parties—people who would have inherited under the old Will or under the laws of intestacy—must be notified. The QLD court gives everyone a chance to have their say, ensuring the final statutory Will is as fair and accurate as possible.
Why It Matters
A statutory Will is more than just a piece of paper; it’s a legally binding document that can help prevent family disputes and ensure that a person’s hard-earned assets (or compensation) go to the people who truly mattered to them. In a way, it bypasses the rigid formulas of the state and brings a human touch back to the law.
At Bradley & Bray, we believe that everyone deserves a legacy that reflects their life and the value of their relationships. Dealing with the Supreme Court for a statutory Will can feel overwhelming, but with our guidance, it is one of the most rewarding ways to help families secure their future.
Do you have a loved one who lacks capacity but needs a Will?
This is a complex area of law that requires a steady, expert hand. Reach out to our succession law team today for a confidential chat about how a statutory Will could provide the peace of mind your family deserves.
Frequently Asked Questions About Statutory Wills
While we’ve covered the basics, statutory Wills often bring up specific practical concerns for families. Here are some FAQs to help you:
Can a statutory Will be contested once the person passes away?
Yes, but it is much harder than contesting a standard Will. Because a statutory Will in QLD has already been scrutinised and approved by the Supreme Court while the person was alive, it is considered highly robust. However, eligible persons (like a spouse or child) can still potentially bring a Family Provision Application if they feel the court-ordered Will didn’t make adequate provision for their maintenance and support.
Who pays for the legal costs of a statutory Will application?
In most cases, the legal costs for a statutory Will application are paid out of the estate of the person who lacks capacity. The court views these applications as being for the benefit of the person and their estate. However, if the court finds that an application was frivolous or unnecessary, it can order the applicant to pay their own costs.
What is the difference between an Enduring Power of Attorney and a statutory Will?
An Enduring Power of Attorney (EPOA) allows someone to make decisions for you while you are alive but lack capacity (such as paying your bills or making health choices). However, an EPOA cannot be used to make or change a Will. If a Will needs to be created or updated for someone without capacity, a statutory Will application to the Supreme Court is the only legal pathway.
How long does the process take?
A statutory Will application is a serious legal proceeding that involves two stages: first, getting “leave” (permission) from the court to apply, and second, the actual hearing for the Will. Depending on the complexity and whether other family members object, the process can take several months. This is why it’s important to act sooner rather than later if you know a Will is critically out of date.
Can a statutory will be made for a child?
Yes. While minors (under 18) generally cannot make a Will, the court can authorise a statutory Will for a child if they have a significant estate (for example, from a personal injury settlement) and it is clear that the default intestacy rules would lead to an unfair outcome.
Does the person have to be “completely” incapacitated?
Not necessarily. The test is whether the person lacks testamentary capacity—meaning they cannot understand the specific nature and effect of making a Will. Someone might still be able to hold a conversation or make simple daily choices, but lack the complex, high-level reasoning required to execute a Will legally.
Do you have more questions?
You can check out more FAQs on succession. We also recognise that every family situation is unique, especially when it involves the Supreme Court. If you’re unsure whether a statutory Will is the right move for your loved one, don’t hesitate to get in touch with us for clear, compassionate advice.
Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.
