You've just realised your parent can no longer make or change their will. Dementia has progressed, or a stroke has taken away their ability to think clearly about assets, beneficiaries, and consequences.
And the will they made 15 years ago? It doesn't reflect their life now. Not even close.
Perhaps one child has become the primary carer while another has drifted away. Perhaps the family business needs to pass to the child who actually runs it, not be split three ways and sold. Perhaps there's a second marriage, step-children, or a child with a disability who needs long-term financial support.
The question hits hard: can anything be done?
The answer is yes. Australian courts can authorise a will to be made, altered, or revoked on behalf of someone who lacks the capacity to do it themselves. It's called a statutory will, and it exists precisely for situations like this.
But it's not automatic, it's not quick, and it's not something you pursue lightly. The court will scrutinise the application, the evidence, and your motives. This article explains when a statutory will is worth considering, what the court looks at, and what you need to know if you're facing this decision.
Key Takeaways
- Courts can authorise wills for people without capacity – if the person lacks the ability to make a will, the Supreme Court may step in and create, alter, or revoke a will on their behalf
- Three core tests must be satisfied – the person must lack capacity, the proposed will must reflect what they would likely have wanted, and the court must consider it appropriate in all the circumstances
- Timing is critical – the person must be alive when the court makes the order, so waiting until a health crisis removes the option altogether
- Applications require strong evidence – medical reports, prior wills, financial documents, and evidence of the person's long-standing intentions and relationships
- This is about honouring intentions, not rewriting them – the court will reject applications that look self-serving or inconsistent with what the person would have genuinely wanted
- Statutory wills can reduce future disputes – a properly structured court-authorised will may help manage family provision claims and business succession risks, though it doesn't eliminate all conflict
Can the court make a will for someone who lacks capacity?
Yes. Every Australian state and territory gives the Supreme Court the power to authorise a will for an adult who lacks testamentary capacity.
Testamentary capacity is the legal term for the mental ability to make a valid will. It means understanding what you own, who your family and dependants are, and the effect of leaving your assets to certain people. When someone loses that ability through dementia, brain injury, stroke, or severe mental illness, they can no longer make or change a will themselves.
That's where the court steps in.
The court can create a new will from scratch, alter an existing will, or revoke a will entirely. The will is treated as if the person made it themselves while they had capacity. Once the court authorises it, it becomes their legal will.
This isn't a backdoor for families to rewrite a parent's estate plan to suit themselves. The court's role is to give effect to what the person would likely have wanted if they still had the ability to decide. The process is careful, formal, and requires compelling evidence.
A statutory will is not about what you think is fair. It's about what the person themselves would have done if they still had capacity. The court will reject anything that looks like self-interest disguised as concern.
When a statutory will is worth considering
Not every outdated will justifies a court application. Statutory wills involve legal costs, time, family scrutiny, and emotional strain. You need a genuine reason to pursue one.
Here are the situations where it genuinely makes sense:
When the existing will creates obvious unfairness. Your father's will was written 20 years ago, leaving everything equally to three children. Since then, one child has become his primary carer, managing his health, finances, and daily life. Another child hasn't visited in a decade. The equal split made sense once. It doesn't now.
When there's no will at all and intestacy rules produce the wrong outcome. Intestacy is the default distribution when someone dies without a valid will. It follows a fixed formula: spouse first, then children, then other relatives. That formula might leave a second spouse with everything, cutting out children from the first marriage. Or it might split assets equally when the person always intended one child to receive the family home or business.
When a family business or company is at risk. Your mother is the sole shareholder in a trading company. For years, she spoke about leaving control to the child who manages the business day-to-day. Her current will says nothing about the shares, or worse, splits them equally among all children. Without a statutory will, the business could be forced into sale or joint control that destroys its value.
When there's a vulnerable beneficiary who needs specific provision. One of your parent's children has a disability and relies on the NDIS and Centrelink benefits. An equal distribution under the old will or intestacy might disqualify them from support. A properly structured statutory will can create a testamentary trust that protects their inheritance without affecting their entitlements.
When a blended family creates competing interests. Second marriages are common. So are wills that don't account for them. If your parent remarried but never updated their will, intestacy rules might favour the new spouse entirely, leaving children from the first marriage with nothing. A statutory will can balance those interests in a way that reflects what your parent actually wanted.
Can you describe, in one sentence, why the current situation is fundamentally inconsistent with what your parent would have wanted? If you can, a statutory will may be appropriate. If you can't, it probably isn't.
Before you start a statutory will application, ask yourself this: if your parent could sit with you for five minutes and understand the situation, would they agree with what you're proposing? If the answer is anything other than "yes, absolutely", reconsider whether you should proceed.
Who can apply and what the court looks for
Who is allowed to apply
Statutory will applications are not restricted to executors or family members. Any "appropriate person" can apply. In practice, that usually means:
- Adult children of the person who lacks capacity
- The person appointed as their attorney under an enduring power of attorney
- The person appointed as their administrator or guardian under a state guardianship tribunal
- A primary carer or close relative with a genuine interest in the person's welfare
The court will scrutinise who is applying and why. If you're applying because you stand to benefit significantly under the proposed will, expect the court to look closely at your motives. That doesn't disqualify you, but it does mean you need to show that the application is genuinely about the person's intentions, not your financial interest.
The three tests the court applies
The court won't authorise a statutory will just because you think it's fairer or more sensible. It applies three tests, and you must satisfy all of them:
Test one: the person lacks testamentary capacity. You need medical evidence confirming that your parent cannot understand what they own, who their family members are, or the effect of making or changing a will. A letter from their GP stating they have "dementia" is not enough. You need a report from a specialist, usually a geriatrician or neuropsychologist, that addresses testamentary capacity specifically.
Test two: the proposed will reflects what the person would likely have wanted. This is the heart of the application. The court is trying to step into your parent's shoes and work out what they would have done if they still had capacity. That means looking at:
- Prior wills and any drafts or instructions they gave before losing capacity
- Statements they made about their intentions, even informal ones
- Their relationships with family members and how those relationships have evolved
- Their pattern of giving during their lifetime, including gifts, loans, and financial support
- Their values, priorities, and any religious or cultural beliefs that influenced their decisions
- The size and nature of their estate, and any specific assets that have personal significance
You're not guessing. You're building a picture from evidence.
Test three: it's reasonable and appropriate in all the circumstances. Even if the first two tests are met, the court has a discretion to refuse the application if something feels wrong. The court will consider:
- Whether the proposed will is fair to all potential beneficiaries, particularly those who would lose out compared to the current will or intestacy
- Whether the application looks like an attempt to defeat creditors, avoid family provision claims, or gain a tax advantage
- Whether there's been full disclosure of the person's assets, liabilities, and family circumstances
- Whether all interested parties have been notified and given a chance to respond
- The risk of future disputes and whether the proposed will is likely to create or reduce conflict
If the application smells like a strategy to benefit one person at the expense of others, without clear evidence that's what your parent wanted, the court will reject it.
The court is not here to write the will you think is fair. It's here to authorise the will your parent would have made. If those two things don't align, you don't have a strong application.
What the process actually involves
Statutory will applications are court proceedings. They follow a formal process, and you'll need a lawyer who understands this area.
The two-stage process
In most Australian jurisdictions, you can't just file an application and get a hearing. There are two stages:
Stage one: applying for leave (permission) to apply. You first need the court's permission to proceed with a statutory will application. You file an initial application setting out who you are, why the person lacks capacity, and in broad terms what you're proposing. The court will consider whether you're an appropriate person to bring the application and whether there's an arguable case. If the court refuses leave, the matter ends there.
Stage two: the substantive application. If you're granted leave, you then file the full application with all the evidence, proposed will terms, and details of interested parties. This is when the real scrutiny begins. The court may require you to serve the application on other family members, potential beneficiaries, and anyone else with a stake in the outcome.
The person who lacks capacity must still be alive when the court makes the final order. If they die before the order is made, the application fails and the existing will (or intestacy rules) will apply.
Evidence you'll need to gather
The court will expect detailed evidence on several fronts:
Medical evidence. A report from a specialist addressing testamentary capacity directly. The report should explain the person's diagnosis, cognitive function, ability to understand complex information, and whether they can make decisions about their estate. If there's any chance your parent might regain capacity, the court needs to know that too.
Prior wills and estate planning documents. Copies of all previous wills, codicils, powers of attorney, and any notes or instructions your parent gave to lawyers or advisers before losing capacity. These documents show what they intended and how those intentions evolved over time.
Financial information. A full picture of the estate: property, bank accounts, superannuation, shares, business interests, debts, liabilities. The court needs to understand what's at stake.
Relationship evidence. Statements from family members, carers, and close friends about the person's relationships, their wishes, and any informal conversations they had about what they wanted to happen to their estate. If your parent repeatedly said they wanted the family home to go to a particular child, you need someone to confirm that in a sworn statement.
Information about potential beneficiaries. Who are the people who would benefit under the current will, under intestacy, and under the proposed statutory will? What are their circumstances, needs, and relationships with the person? The court will want to understand who gains and who loses.
You will also need to demonstrate that you've been transparent with other family members and potential beneficiaries. Hiding information or running the application in secret will destroy your credibility.
Start gathering evidence early, especially informal statements and relationship history. Once your parent's condition deteriorates further, memories fade and witnesses become harder to locate. The medical report is critical, but don't underestimate the weight the court gives to clear, consistent evidence of what your parent actually said and did over many years.
Timing, urgency, and what happens if you wait
The person must be alive when the court makes the order. That single rule creates urgency in many cases.
If your parent is in hospital with a rapidly declining condition, you may only have weeks to gather evidence, instruct lawyers, and file the application. If they die before the order is made, the application fails. The existing will governs, or if there's no will, intestacy rules apply.
This is not about rushing a decision for the wrong reasons. It's about recognising that if a statutory will is genuinely appropriate, delay removes the option altogether.
Conversely, if your parent has early-stage dementia and the decline is gradual, you may have months or even a year or more to prepare properly. Use that time to gather strong evidence, consult all relevant family members, and ensure the proposed will genuinely reflects your parent's intentions.
The worst scenario is realising too late that a statutory will was needed. By the time you seek advice, your parent has died and the opportunity is gone.
If you're even considering a statutory will, get legal advice now. Not next month. Not after the next family meeting. Now.
Waiting for consensus among all family members is admirable, but if your parent's health is deteriorating, you may need to move forward even if one sibling is hesitant. The court process itself provides safeguards: full disclosure, notice to interested parties, and judicial oversight. Use that structure rather than letting indecision run out the clock.
How statutory wills affect future disputes and family provision claims
A court-authorised will doesn't eliminate the risk of later challenges. It changes the nature of those challenges.
Family provision claims
Every Australian jurisdiction allows certain people to apply to the court for a greater share of an estate if they've been left inadequate provision. Eligible claimants typically include spouses, children, and sometimes former spouses or dependants.
A statutory will can be challenged under family provision laws just like any other will. But there's a difference: the court has already considered what provision is appropriate. That doesn't bind a later court hearing a family provision claim, but it carries weight.
If the statutory will was made after careful consideration of all family members' circumstances, and the court was satisfied it reflected the person's intentions, a later family provision claim faces a higher hurdle. The claimant must show not only that the provision is inadequate, but that the statutory will process failed to account for their needs or that circumstances have changed significantly since the order was made.
Disputes about validity and undue influence
One advantage of a statutory will is that it's virtually immune to challenges based on lack of capacity or undue influence. The court has already determined that the person lacked capacity, and the will was made by court order, not through anyone pressuring the person. Those two common grounds for challenging wills are effectively removed.
However, if the evidence in the statutory will application was incomplete, misleading, or dishonest, a later challenge may succeed on the basis that the court was misled. Transparency and full disclosure are not just ethical obligations. They're practical protections.
Managing expectations and family conflict
Statutory will applications often surface family conflict that was simmering beneath the surface. One child applies. Another objects. Old grievances re-emerge. The court process becomes a proxy for deeper disputes about who cared more, who did more, and who deserves what.
If you're the applicant, you need to manage this carefully. Communicate openly with siblings and other interested parties before you file. Explain what you're proposing and why. Share the evidence. Invite their input.
You won't always get agreement, but you can demonstrate good faith. That distinction matters, both to the court and to your family relationships after the process ends.
If you're worried that a statutory will application will trigger a family provision claim later, factor that risk into your decision-making now. Sometimes the best outcome is a will that provides slightly less than you think your parent would have wanted, but which reduces the likelihood of a costly dispute after they die. Strategic compromise can save everyone time, money, and emotional energy.
Practical steps if you're worried about a parent's will
If you've read this far and you're starting to think a statutory will might be necessary, here's what to do next.
Get a proper capacity assessment. Arrange for your parent to be assessed by a geriatrician, neuropsychologist, or other specialist. Make sure the assessment addresses testamentary capacity specifically. If they still have capacity, even partially, this is the time to update their will through normal channels. Don't wait for capacity to disappear entirely.
Gather existing documents. Locate all prior wills, powers of attorney, trust deeds, company records, and estate planning documents. Talk to your parent's lawyer, accountant, and financial adviser. Build a complete picture of what they intended and what they own.
Document your parent's statements and wishes. If your parent is still able to communicate their wishes, even if they lack full testamentary capacity, document those conversations. Write down what they say, when they said it, and who else was present. This evidence will be critical if you later need to apply for a statutory will.
Talk to your siblings and other family members. Don't surprise them with a court application. Explain your concerns, share the medical evidence, and discuss what your parent would have wanted. You may find more agreement than you expect. Even if you don't, transparency now reduces conflict later.
Get legal advice early. Speak to a lawyer who specialises in estate litigation and statutory wills. Aptum Legal's expertise is in disputes and litigation, and we regularly advise families navigating these decisions. We can help you assess whether a statutory will is appropriate, what evidence you'll need, and how to manage the process strategically.
Consider the timing carefully. If your parent's health is declining rapidly, you may need to move quickly. If the decline is gradual, take the time to prepare properly. But don't assume you have unlimited time. The person must be alive when the court makes the order.
Think about the family dynamics. Who is likely to support the application? Who might oppose it? What are their concerns, and can you address them before filing? The more you understand the human side of the dispute, the better you can manage it.
If you're the attorney under an enduring power of attorney, you have a legal duty to act in your parent's best interests. That duty extends to estate planning. If the current will is clearly out of step with your parent's intentions and circumstances, applying for a statutory will may not just be an option, it may be your responsibility.
When the court won't step in
The court's power to authorise statutory wills is broad, but not unlimited. There are situations where the court will refuse to act, even if the person lacks capacity.
When there's no real problem to solve. If the existing will is recent, reflects the person's circumstances, and treats potential beneficiaries fairly, the court is unlikely to authorise a change just because you think a different distribution would be better.
When the evidence is thin or contradictory. If you can't produce clear medical evidence of incapacity, or if there's conflicting evidence about what the person wanted, the application will struggle. Vague statements like "Mum always said she wanted me to have the house" are not enough without corroboration.
When the proposed will looks self-serving. If you're the main beneficiary under the proposed will, and your evidence of the person's intentions is weak, the court will be sceptical. You need independent evidence from other family members, prior wills, or documented conversations to show this isn't just about what you want.
When the application is really about tax planning or asset protection. Courts will not authorise wills designed primarily to minimise tax, defeat creditors, or restructure assets for purposes unrelated to the person's intentions. The focus must be on honouring what the person wanted, not financial engineering.
When the person might regain capacity. If there's a reasonable prospect that your parent will recover capacity, even temporarily, the court may decline to act and suggest waiting. For example, someone in a reversible delirium or recovering from surgery might regain the ability to make their own will.
When the family conflict is too deep. If siblings are at war and the statutory will application is just another battleground, the court may decide the process will cause more harm than good. In extreme cases, the court might refuse the application and leave it to the family to sort out after the person dies.
If any of these scenarios describe your situation, you need to think very carefully about whether a statutory will application is realistic.
The court is not a rubber stamp. If you walk in with weak evidence, unclear intentions, or obvious self-interest, you will fail. And you'll have spent significant legal costs, damaged family relationships, and achieved nothing. Be honest with yourself about the strength of your case before you start.
How this fits with broader estate and business succession planning
Statutory wills don't exist in isolation. They're one tool within a larger framework of planning for incapacity and succession.
If your parent has an enduring power of attorney, the attorney has authority to manage their financial affairs but cannot make or change a will. That's where statutory wills come in. The two mechanisms work together: the attorney manages day-to-day finances, and if estate planning is needed, they can apply for a statutory will.
If your parent has appointed a guardian or if a guardianship tribunal has appointed an administrator, that person may also be the appropriate applicant for a statutory will. The guardian manages personal and health decisions; the administrator manages finances; and if a will needs updating, the statutory will process provides the mechanism.
For families with business interests, statutory wills are particularly important. A family company, partnership, or trust often requires specific succession planning. If your parent holds shares, units, or control over a business structure, and they can no longer update their will, a statutory will may be the only way to protect business continuity. The alternative is the shares or interests passing under intestacy or an old will that didn't contemplate the current structure, potentially forcing the business into joint control among people who don't work together or, worse, triggering a sale.
For families with self-managed superannuation funds (SMSFs), the same issues arise. Superannuation doesn't automatically pass under a will. It depends on binding death benefit nominations, trust deeds, and the SMSF structure. If your parent lacks capacity, they can't update their SMSF nominations. A statutory will can address how the estate deals with the superannuation proceeds once they're paid out, but it doesn't override the SMSF rules. That's why early planning, before capacity is lost, is so much easier.
The lesson is this: statutory wills are powerful, but they're reactive. They fix problems after capacity is gone. Far better to plan ahead, while your parent can still act, so you don't need a court order.
If you're advising ageing parents or if you're responsible for their financial affairs, push for comprehensive estate and succession planning now, while they have capacity. Update wills, establish clear succession plans for business interests, and ensure SMSF arrangements reflect their intentions. A statutory will is a safety net, but it's expensive, stressful, and uncertain. Don't rely on it if you can avoid it.
Making the right decision for your family
Deciding whether to apply for a statutory will is not straightforward. It requires balancing legal principles, family dynamics, practical constraints, and emotional realities.
You want to honour your parent's wishes. You want to avoid unfairness. You want to protect vulnerable family members and business interests. But you also want to avoid unnecessary conflict, cost, and stress.
Start by asking yourself these questions:
- Can I clearly articulate, in one sentence, why the current will or intestacy outcome is fundamentally wrong?
- Do I have strong evidence of what my parent would have wanted, beyond my own belief?
- Have I spoken openly with other family members about this, and do they understand my reasoning?
- Am I prepared for the scrutiny, transparency, and potential conflict that a court application will bring?
- Is the timing urgent, or can I take more time to gather evidence and build consensus?
- Have I sought advice from a lawyer who specialises in this area and who can give me a realistic assessment of the prospects?
If you can answer those questions confidently, a statutory will may be the right path. If you can't, pause and reconsider.
This is not about winning. It's about doing what your parent would have wanted if they still had the ability to decide. Keep that focus, and the decision becomes clearer.
The court process is adversarial by design, but your approach doesn't have to be. You can pursue a statutory will with transparency, good faith, and genuine respect for all family members' perspectives. That won't eliminate conflict, but it will reduce it. And it will give you confidence that you've acted honourably.
Why Aptum Legal
At Aptum Legal, we specialise in litigation and disputes. We see the consequences when estate planning goes wrong: families torn apart, businesses damaged, and wealth consumed by legal costs.
Statutory will applications sit at the intersection of estate planning and dispute resolution. They require careful strategy, strong evidence, and a clear understanding of how the court process works. They also require managing family relationships and preparing for potential challenges down the track.
We work with families and businesses to assess whether a statutory will is appropriate, gather the evidence the court will expect, and present the application in a way that maximises the prospect of success while minimising unnecessary conflict. We also advise on how a statutory will interacts with family provision claims, business succession, and other estate disputes.
If you're facing this decision, we can help you think it through. We can tell you, with clarity, whether you have a strong case, what the process will involve, and what the risks are. And if we don't think a statutory will is the right answer, we'll tell you that too.
The right advice at the right time makes all the difference.
Disclaimer: This article provides general information only and does not constitute legal advice. The law on statutory wills varies across Australian jurisdictions, and every family's circumstances are different. You should seek specific advice from a qualified lawyer before making decisions about estate planning or statutory will applications.
