Did you know that the ACT Supreme Court (and the Supreme Courts in NSW and other Australian jurisdictions) have the power to make a Will for someone?
The Courts have a statutory power to make an order authorising a Will to be made for a person who does not have testamentary capacity.
Here’s an example of why this power is important. Consider the position of Samantha, who sustained an acquired brain injury in a nasty accident. Samantha got $10 million in compensation for her injury. She doesn’t have a Will and can’t make one now as she doesn’t have testamentary capacity. She also doesn’t have a partner, nor any children. Because she doesn’t have a Will, the law says her estate will be divided 50/50 between her parents after death. Samantha would not want that because she hasn’t seen her Dad since she was a very young child. Samantha is however very close to her Mum as her mother brought her up and has always been there for Samantha. Further, more recently, Samantha’s mother has found herself back in a caring role because of Samantha’s acquired brain injury and her desire to be there for her daughter. In these circumstances, an application could be made to the Court for a statutory Will to be made for Samantha. The statutory Will might, for example, leave all of Samantha’s estate to her mother such that her father receives nothing. That outcome may be a better reflection of Samantha’s wishes.