Although it has long been required that a will maker possess the necessary testamentary capacity, in 2006, amendments were made to the Succession Act 1981 (Qld) to allow the Supreme Court to make a will for a person who lacks testamentary capacity.
Section 21 of the Succession Act 1981 (Qld) gives the court the power to make or alter a will for a person only be granted where the individual does not have testamentary capacity; is alive at the date of the order, and the terms of the proposed will are approved by the court.
The application for a statutory will comprises two stages. Firstly, the applicant must seek leave to make the application and, if leave is granted, the court will hear the substantive application.
The court may grant leave under Section 22 Succession Act 1981 (Qld) if it is satisfied of the following:
- the applicant is an appropriate person to make the application. This usually means they have some relationship with the will maker;
- adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the proposed will maker;
- there are reasonable grounds for believing that the person does not have testamentary capacity;
- the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity; and
- it is or may be appropriate for an order to be made under section 21 in relation to the person.