Statutory Wills (NT)

In the Northern Territory, only an adult with “testamentary capacity” can make a valid will. As a person may lack testamentary capacity but require a will, the Wills Act 2000 makes provision so that these individuals do not die intestate. The Supreme Court of the Northern Territory can approve the creation of a “statutory will” to express the testamentary wishes of someone who lacks the capacity to write their own will. A statutory will can deal with the whole or only some of the individual’s property.

Testamentary capacity

Testamentary capacity is a legal term that refers to an individual’s ability to demonstrate the level of comprehension, recollection and mental cognisance required to make a will. Someone who makes a will (called a “testator”) must be able to remember their assets (in broad terms), understand the effect of their action in making a will, and comprehend that certain people may be entitled to provision from their deceased estate. Obviously, a testator is not required to have a comprehensive legal knowledge of wills and estate law. Still, it is important that a testator can understand that there are legal principles that apply to this process. In cases where the testator’s capacity is in question, it is helpful to have a solicitor explain these principles to the testator. The solicitor can then make a file note that the testator demonstrated comprehension of the consequences of making a will.

A person either has nil capacity (because they never developed legal capacity), or lost capacity (because of acquired impairment). In addition, a person may lack the capacity to make some legal decisions but not others. For instance, an individual may have the capacity to make decisions about where they live and with whom, but not be able to make legal decisions about the disposition of their property after their death. The best evidence of testamentary incapacity is medical reports from experts such as the proposed testator’s treating physician, geriatrician or neuropsychologist. Medical professionals often have extensive experience in assessing testamentary capacity against well-established legal standards. An expert can give a professional opinion on whether the proposed testator currently has the capacity to make a will, or is likely to acquire capacity in the future. The court may hear evidence from friends and family, but it gives preference to independent evidence from medical practitioners.

Statutory wills in the Northern Territory

The Supreme Court of the Northern Territory can authorise a statutory will for an individual who lacks testamentary capacity. In this way, the court steps into the proposed testator’s shoes to give them some autonomy to dispose of their own possessions, albeit with this power exercised and mediated through a judge. The court will only authorise the creation of a statutory will under certain circumstances. It must be reasonable to authorise the will, considering the capacity of the individual, their assets and their family circumstances. In addition, a statutory will can only be made for someone who is alive.

The Supreme Court does not actually write the statutory will. Instead, the court authorises a proposed will. The statutory will is meant to reflect the intentions of the person, as best as can be fathomed by the applicant and the Supreme Court. The Supreme Court only accepts applications for statutory wills from an appropriate person. Applicants are typically the impaired testator themselves, or their close family members. Australian courts have previously authorised statutory wills written by a lawyer, friend and personal carer of the impaired individual.

Application for statutory will

An applicant should ensure that they inform all relevant parties before applying for a statutory will. It is particularly important to notify anyone who would be otherwise eligible to inherit under intestacy law. When applying to validate a statutory will, the applicant should file with the court:

• A written statement outlining the nature of and reasons for the application;
• Evidence of the proposed testator’s lack of testamentary capacity;
• An estimate of the size or nature of the proposed testator’s estate;
• An initial draft of the proposed will;
• Any available evidence revealing the proposed testator’s wishes;
• Likelihood of the proposed testator regaining or acquiring testamentary capacity in the future;
• Any existing will made previously by the proposed testator;
• A list gathered through reasonable diligence of any person who might expect to inherit under a will or be entitled to inherit from the proposed testator’s intestate estate;
• Evidence that the testator might be the subject of a property settlement;
•  Any charitable bequest that the proposed testator might reasonably make in a will; and
• Any other facts that the applicant feels are relevant to the application.

Go To Court Lawyers can help you make an application for a statutory will in the Northern Territory. Please contact our team today on 1300 636 846 to discuss your legal needs.