Understanding the Different Types of Court-Ordered Wills in Western Australia

Making a will allows you to establish how your assets should be distributed after your death. Sometimes, there might be situations where an individual is not capable of making, changing or revoking a will. In Western Australia, the Supreme Court may deal with particular applications regarding testamentary matters of a person lacking capacity. There are three different types of court-ordered wills applicable in Western Australia. This guide presents a brief look at each of them and how the court assesses a court-ordered will.

1. Court Order to Make Statutory Will

A statutory will is prepared on behalf of a person who lacks testamentary capacity. This process is different from simply making a new will, since the Court must approve the arrangement on behalf of a person who cannot give instructions themselves. It is frequently required where illness, injury, mental condition, or any other problem makes a person incapable of executing their own will.

Under What Circumstances Can A Statutory Will Be Ordered?

An application may be appropriate where a person cannot make a will, but their estate requires clear testamentary arrangements. The proposed will may address beneficiaries, assets, executorship and other relevant provisions. Applying for a court-ordered will generally involves gathering detailed evidence of:

• The person’s assets and liabilities
• Their wishes and preferences
• The person’s family and relationships
• The relevant circumstances of proposed beneficiaries
• Possible family provision claims

2. Court-Ordered Alteration of an Existing Will

The existing will may become obsolete due to significant changes in the circumstances of a particular person. If a person is not capable of making such changes, an application to the Court for altering the testamentary arrangements may be made.

Changes That May Necessitate An Alteration

There are several things that may influence the appropriateness of the existing will. These changes may involve a change in relationships, beneficiaries, ownership of property, or the financial situation of the person.

Any change in the will does not always mean that all terms of the existing will have to be changed. The Court will be able to evaluate the appropriateness of the suggested changes. It is important to note that prior to the discussion of any potential reasons for the change in the will, the procedure remains subject to the court’s evaluation. The Court considers evidence about the person and their circumstances before deciding whether the proposed changes should be approved.

3. Court-Ordered Revocation of a Will

Revocation entails cancellation of the existing will in whole or in part in relation to the testamentary dispositions. Revocation may be necessary if the existing will is not suitable for the individual concerned.

In Which Situations Would Revocation Be Taken Into Consideration?

Individuals lacking testamentary capacity can’t just revoke their wills on their own. In such cases, it might be necessary to make an application if it seems that the will shouldn’t continue to operate.

The court takes into consideration the evidence in the situation when deciding whether the revocation is to take place. Such evidence could be the person’s wishes, family situation, estate, and reasons for revocation. Revocation should also be distinguished from simply preparing another will. If testamentary capacity is lacking, it might be necessary to involve the courts in the process.

How Does the Court Consider These Arrangements?

It is important to understand the three types, but it should be noted that every case is different and requires an individual approach based on the provided information.

The Person’s Circumstances

The Court might consider the information about the person’s life, family, assets, liabilities, and wishes known to the person. All of these factors help determine whether the arrangement suggested is suitable for the particular person.

Family Relationships

Family circumstances can also be relevant. The Court may need to understand the person’s relationships with potential beneficiaries and other people who may be affected. This can include estranged family members or dependents. Their circumstances may influence whether the proposed arrangement is considered fair and appropriate.

The Proposed Testamentary Arrangement

The proposed will, alteration or revocation must be supported by appropriate evidence. This evidence often includes medical reports, financial records and statements from family members. Consulting lawyers specialising in wills in Perth can help ensure the necessary evidence is properly prepared and presented in a way that meets the Court’s requirements.

Conclusion

Court-ordered wills are a means to have recourse in law where the individual does not have the capacity to make decisions about their will. The Court may give approval for the making of a new will, changes to a will already made, or even cancellation of the will.

Each application requires careful consideration of the person’s wishes, estate, family relationships, and available evidence. If you are considering Court-Ordered Wills in Perth, getting tailored legal advice can help you determine the appropriate application and prepare the necessary supporting material.