Statutory wills: Making a will for a person who lacks capacity

The concept of the statutory will was first introduced in Australia after the Report on Wills for Mentally Disordered Persons was issued in 1985¹ and Wills for Persons Lacking Will-Making Capacity in 1989.²

The problem identified was that the requirement of testamentary capacity meant that any person lacking that capacity was unable to make a valid will. This led to issues whereby, for example, a person develops dementia and their existing will is out of date but the person now lacks the testamentary capacity to amend it, or a minor suffers an injury at birth and receives a large damages award and the laws of intestacy will not provide for the appropriate people (for example, estranged family members, carers or charities).