When a person passes away without a valid will or when certain individuals are left out of a will, legal complexities can arise. In Australia, the court has the authority to order the creation of a will or to alter an existing one under specific circumstances. This is known as a court-ordered will or a statutory will. The process is complex, highly regulated, and requires expert legal guidance to navigate properly. This step-by-step guide will help you understand the court-ordered will process and the essential role legal support plays throughout.
Step 1: Understanding Court-Ordered Wills
A court-ordered will is created or altered by the court under the Succession Act 2006 (NSW) or equivalent legislation in other Australian states. This legal mechanism allows for the creation of a will on behalf of a person who cannot do so themselves. This often applies to individuals with mental incapacity due to illness, injury, or disability. In some cases, it may also be relevant where a person dies intestate (without a will), and there is reason to believe the existing distribution of their estate would not reflect their wishes.
These wills are designed to ensure fairness, often benefiting dependents, family members, or others who would likely have been included in a will had the person been able to make one. To proceed, one must demonstrate to the court that there are reasonable grounds to believe the proposed will reflects the true intentions of the individual.
Step 2: Engage Legal Support
Due to the legal complexity and the need for substantial evidence, engaging legal support is critical when pursuing a court-ordered will. The application must be filed with detailed documentation, including medical evidence, financial records, and a draft of the proposed will. The court assesses whether the proposed will is one the individual would have made if they had the capacity.
This is where experienced Wills Lawyers Perth can offer invaluable assistance. They help gather and present the necessary documentation, consult with medical professionals to prove mental incapacity, and prepare the application per legal requirements. Wills lawyers also ensure that the drafted will is carefully structured to meet court standards and reflect the likely wishes of the person involved.
With professional legal support, you are more likely to present a compelling case that the court will accept, reducing the risk of delays or rejections.
Step 3: Preparing and Filing the Application
Once you’ve retained a lawyer, the next step involves preparing the application for the Supreme Court. The process typically includes:
- A draft of the proposed will
- An affidavit outlining the person’s background, relationships, and estate
- Medical evidence proving a lack of capacity
- Details of any existing wills or informal documents
All this must be compiled meticulously to satisfy the court’s strict requirements. If the court is satisfied, it will authorise the proposed will or make the necessary changes to an existing one.
This stage often involves back-and-forth correspondence between your lawyer and the court to clarify points, respond to questions, or amend documentation. Having a lawyer manage this correspondence significantly improves the chances of a smooth process.
Step 4: Handling Disputes or Objections
Court-ordered wills can sometimes lead to disputes among potential beneficiaries, especially if someone feels they have been unfairly excluded or inadequately provided for. These disputes can delay proceedings and complicate the court’s decision-making process.
In such situations, having experienced wills dispute lawyers in Perth is essential. These legal professionals specialise in managing conflicts related to contested wills and can provide critical representation if your application faces opposition. They work to resolve disagreements through negotiation or, if necessary, court hearings.
Disputes can arise due to questions about the authenticity of the proposed will, the intentions of the incapacitated person, or disagreements among family members. Lawyers who specialise in will disputes can address these concerns proactively and advocate effectively on your behalf.
Step 5: Court Decision and Will Implementation
Once the court has reviewed the application and any objections, it will make a final decision. If the application is successful, the court will authorise the draft will, which then becomes the legally binding document governing the distribution of the person’s estate.
The authorised will must then be implemented just like any other legal will. This includes applying for probate, identifying assets, and distributing them to beneficiaries. Your lawyer can guide you through this post-approval process, ensuring all legal requirements are met and that the estate is administered correctly.
Step 6: Keeping Your Will Updated
While court-ordered wills apply to individuals who cannot create or update their own will, this process highlights the importance of regularly reviewing and updating your will while you still have capacity. Life changes, such as marriage, divorce, having children, or acquiring significant assets, should prompt a review of your will.
If you reside in Western Australia, it’s wise to seek professional guidance on updating your will in Perth to ensure your wishes are always legally documented and up to date. Lawyers can help you make modifications that reflect your current circumstances, thereby reducing the risk of disputes or the need for court intervention in the future.
By keeping your will current, you protect your loved ones and provide clear instructions that reduce the likelihood of legal complications after your passing.
Conclusion
Court-ordered wills are a legal safeguard for individuals who lack testamentary capacity, ensuring their assets are distributed fairly and reasonably. However, the process is complex and requires thorough preparation, documentation, and a solid understanding of legal knowledge.
Whether you’re applying for a court-ordered will, facing a dispute, or simply want to avoid future complications by keeping your will up to date, legal support is crucial. Working with experienced professionals—such as Wills Lawyers and experts in updating your will—can help ensure the process is handled smoothly and that your intentions or those of your loved ones are respected.
Legal support provides clarity, reduces stress, and safeguards your interests in what can otherwise be a complicated and emotionally challenging process. Don’t leave your estate planning to chance—get the expert help you need to secure your legacy.
