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Statutory Wills

Statutory wills are also called ‘court made wills’ or ‘court authorised wills’.

Statutory will cases are often divided into three categories, and these categories offer some insight as to the circumstances in which it may be appropriate to make application for a statutory will.

Such categories are as follows:

  1. Lost capacity cases – where a person has made a will which might no longer be appropriate, but the person has suffered an illness or accident which has caused them to no longer have capacity to make a new will. In such circumstances, an application can be made to the court, for the court to make a new will or alter or revoke the existing will.
  2. Nil capacity cases – where the person has never had capacity because of a condition which they have had since birth or an illness or accident they suffered early in life, which has prevented them from ever having the capacity to make a will. It may be that such person receives a substantial compensation payment and if a statutory will is not made, the distribution of the person’s estate on intestacy will cause an injustice.
  3. Pre-empted capacity cases – where a person does not now have capacity to make a will, but previously did and there may be evidence available as to how they would make their will now, if they could.

There is no restriction as to who can make an application to the court for a statutory will, but often it is the case that the applicant is a close family member.

There is a two step process in making application for a statutory will. 

First of all you must make application to the court for leave to bring the main application. In this step the court must be satisfied that you are an appropriate person to make the application and that adequate steps have been taken to allow representations of all persons with a proper interest in the application, including those who have reason to expect a gift or benefit from the estate. 

Secondly, when you have been given leave, you must satisfy the ‘core test’ - being that the court must be satisfied that the proposed will, alteration or revocation, would accurately reflect the likely intentions of the testator, if he or she had capacity to make their own will.

Springwood Lawyers have experience in acting for parties, in the making of statutory wills.

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