No Will in the World

What happens if a person lacks legal capacity to make a Will?   The Supreme Court may make a "statutory Will" for the person.   In Re The Will of Alexa [2020] NSWSC 560 Justice Hallen was asked to make a Will ("statutory will") on behalf of young woman with brain damage who had never written a Will and had no capacity to tell the Court what she would want in her Will.   She had been awarded compensation following a medical negligence claim made on her behalf, so she had significant assets (just over $3m). Her parents had separated and she was living in a group home for people with disabilities.  The proposed Will put forward by her mother was to give 65% of the funds to her mother and 5% each to her father and other family members.  The evidence was that her mother was actively involved with her and remained committed to looking out for her.  Interestingly, no-one opposed the proposed Will and the Judge being satisfied of her incapacity to make a Will herself ordered a statutory Will to be made and ordered that the costs of the application for the Will be paid for from the monies held on trust for her.

 

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