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Elderly parents still of ‘sound mind’?

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My elderly parents are no longer of ‘sound mind’. Am I able to make a Will on their behalf?

My elderly parents are no longer of ‘sound mind’. It is my understanding that they have never made a Will. Am I able to make a Will on their behalf?

No, you are not able to make a Will on behalf of your parents.

It is a requirement under legislation that, the person making a Will has ‘testamentary capacity’ at the time of making the Will. On the information you have provided, it is apparent that your parents no longer have this ‘testamentary capacity’ as they are no longer of sound mind.

What can I do?

Fortunately, there is an option available under the legislation that will allow a valid Will to be made for your parents.

This is called a ‘Statutory Will’ and it refers to a Will executed by a person who, at the time of execution, lacked testamentary capacity. To enable your parents to make a Statutory Will you need to make an application to the Court.

The Court has the power to make an order, authorising a Will to be made for your parents, in terms approved by the Court, even though your parents lack testamentary capacity.

The application can only be made while your parents are alive, so you will need to act quickly in seeking expert legal advice from a Probate specialist. They can advise you on the evidence you need, to support the application and how to satisfy the Court that a Statutory Will should be made for your parents.

What evidence is needed for the application for a Statutory Will?

In determining your application for a Statutory Will for your parents, the Court requires the following information:

  • A written statement of your reasons for making the application;
  • Evidence of your parents lack of testamentary capacity to make a Will;
  • A reasonable estimate of the size and character of your parents Estate;
  • A draft of the proposed Wills for your parents;
  • Evidence of your parent’s wishes regarding the distribution of their Estate;
  • Evidence of any likelihood of your parents regaining testamentary capacity;
  • Evidence of any people who would be entitled to make a claim on your parent’s Estate if they die without a Will and the rules of intestacy are applied;
  • Evidence of any person for whom provision might reasonably be expected to be made under your parent’s Will such as any of your siblings or any of their grandchildren; and
  • Evidence, if any, of any gifts to charitable organisations that your parents might reasonably be expected to make by Will.

    When will the Court order a Statutory Will?

The Court will make an order for a Statutory Will for your parents if it is satisfied that:

  • There is reason to believe that your parents are incapable of making a Will; and
  • The proposed Wills are reasonably likely to be ones that your parents would have made if they had testamentary capacity; and
  • Adequate steps have been taken to allow representation of all persons with a legitimate interest in the application for Statutory Wills including persons who have reason to expect a gift or benefit from your parents Estates.

Graeme Heckenberg is an expert Wills and Estate lawyer.

Call today for a an appointment closer to home on 9221 0341

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