Queensland’s Succession Act 1981 permits a will to be made for certain persons who lack capacity to make their own will.

An application can be made to make a will for a person who has never had capacity, such as persons injured during childhood who have received a substantial compensation payment. If left to the intestacy rules, their estate may go to persons who are, for all intents and purposes, may be undeserving. A statutory will can ensure their estate goes to the people who the person most likely would have wanted to benefit.

Similarly, where an older person with a will loses capacity, their will may not accommodate circumstances that change after they lose capacity. A statutory will can ensure their will is updated. The application will be required to show the court that the proposed updated will is a will the person would have made, if they had the capacity.

For example, if a beneficiary became bankrupt or was embroiled in family law property settlement proceedings, then the testator may not want their inheritance to be affected by those matters, and so it may be appropriate to update the will with mechanisms for protecting the beneficiaries’ intended inheritance.