What Happens If a Person Can’t Make a Will? Statutory Wills in WA Explained
What Happens If Someone Can’t Make a Will? Understanding Statutory Wills in Western Australia
When a loved one lacks the capacity to make their own Will, Western Australia Law provides a solution known as a Statutory Will. Statutory Wills are created and sometimes amended by the Supreme Court. It is important for families in the agricultural sector to understand Statutory Wills and their potential impact on farming operations, to enable these families to safeguard their interest effectively.
What Is a Statutory Will?
A Statutory Will is a court-approved Will made on behalf of an individual who lacks the capacity to prepare their own Will. . Established under the Wills Amendment Act 2007 (WA), this legislation allows the Supreme Court of Western Australia to authorise the creation, modification, or revocation of a Will on behalf of an incapacitated person.
Understanding the parameters of a Statutory Will is relevant to farm succession planning, where significant assets must be managed with precision to mitigate the risk of future disputes or unintended consequences.
When Can the Court Make a Statutory Will?
Under Section 42 of the Wills Act 1970 (WA), the court must be satisfied that:
The person lacks testamentary capacity - that is, they are unable to understand the nature and effect of the Will.
The proposed Will or changes reflect what the person likely would have wanted, considering their past wishes, values, and relationships.
The applicant is appropriate - this may include a family member, carer, or even a potential beneficiary.
All relevant parties with a legitimate interest in the estate are notified and have a chance to be heard.
Common Scenarios for Statutory Wills
There are several situations where someone may want to adjust the way an estate is distributed, whether there is a Will in place or if the person passes away without a Will. Here are a few examples:
If the Will maker has a disability and one parent is caring for them, which may affect that parent’s finances;
Where there is clear evidence that the Will maker’s views have altered since their existing Will was made;
If the Will maker has separated from their partner and the current Will still gives significant benefits to that partner;
Where a gift to a beneficiary will not take effect due to the death of that beneficiary;
Statutory Wills may be required when the previous Will is missing, defective, contains errors or includes ambiguous language.
Why This Matters in Farm Succession Planning
It is important to ensure that your Will is current, easily accessible and legally valid, particularly in the agricultural sector, where asset values are substantial and can significantly influence the operation of your farm. Gaining a thorough understanding of the implications of a Statutory Will and how they may apply to you can enable effective estate planning and preparation, ensuring that your legal structure aligns with your family’s future goals.
Need Advice? We're Here to Help
At Granich Partners, we are Perth’s leading succession planning and estate law firm for rural families. Whether you need advice on statutory Wills, farm succession, or broader estate planning, our experienced team is here to help you navigate the complexities with clarity and care.
Call us on (08) 9324 2111, email us on granich@granichpartners.com.au or simply complete the form below, and we’ll be in touch.