Most people assume that if you don’t have testamentary capacity, you simply can’t make or change a will – full stop. For decades, that was the law. But since the introduction of Part 2 of the Succession Act 1981 (Qld), the Supreme Court of Queensland has had the power, in certain circumstances, to authorise a will to be made, altered or revoked on behalf of a person who lacks the capacity to do it themselves.
This is known as a statutory will, and it has become an important – if still relatively rare – tool for families and advisers dealing with the consequences of dementia, acquired brain injury, intellectual disability, or a minor who has come into significant assets.
This article explains how the jurisdiction works, when an application is likely to succeed, and what the Court requires to be satisfied before it will step into the shoes of someone who cannot make decisions for themselves.
What is a statutory will?
A statutory will is an order of the Supreme Court authorising a will (or an alteration or revocation of an existing will) to be made on behalf of a person who lacks testamentary capacity. It is not the Court itself making a gift of the person’s property – section 21(6) of the Act expressly makes clear that an order under the section does not, of itself, make, alter or revoke a will or dispose of any property. Rather, the order authorises a will in specified terms to come into existence, which is then executed on the incapacitated person’s behalf.
The jurisdiction extends to minors and to adults – anyone who, at the time of the order, lacks testamentary capacity and is still alive.
The statutory framework
Section 21 – the power to authorise a will
Under section 21 of the Succession Act 1981 (Qld), the Court may order that a will be made or altered, in terms stated by the Court, on behalf of a person without testamentary capacity, or that a will (or part of one) be revoked on their behalf.
- Before making such an order, the Court must be satisfied that:
- the relevant person lacks testamentary capacity and is alive when the order is made;
- the applicant is an appropriate person to bring the application;
- adequate steps have been taken to allow representation of other people with a proper interest in the application – including anyone who might reasonably expect a gift or benefit from the estate;
- the proposed will, alteration or revocation is, or may be, one the person would have made if they had capacity; and
- the Court itself approves the proposed will, alteration or revocation.
The Court can also impose conditions on the order, give any necessary related directions, and order that costs be paid from the relevant person’s assets.
Section 23 – the information the Court needs
To get an application off the ground, the applicant must put before the Court the matters listed in section 23, which include:
- evidence of the lack of testamentary capacity and the prospects (if any) of the person regaining it;
- the size and character of the estate;
- a draft of the proposed will;
- any evidence of the person’s actual wishes;
- evidence of any previous will;
- evidence relevant to the likelihood of a family provision claim;
- evidence of gifts the person might have made to charities or others;
- evidence as to who the person might have been expected to provide for;
- evidence of anyone who might benefit if the person died intestate; and
- any other relevant facts.
In practice, this means a statutory will application is built on a body of affidavit evidence -medical evidence of incapacity, family and social history, evidence of the person’s values and relationships, and (where one exists) the terms of any earlier will as a reference point.
Section 25 – an inquisitorial, not adversarial, process
Section 25 gives the Court considerable latitude in how it goes about deciding the application. The Court may have regard to the information given under section 23, may inform itself of any other relevant matter in whatever way it considers appropriate, and is not bound by the rules of evidence.
This reflects the protective character of the jurisdiction. As was recognised in Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22, considering an equivalent New South Wales framework, the Court’s role here is not that of an umpire between opposing parties – it is to do the best it can, on the available material, to work out what this particular person would have wanted. That can mean the Court taking its own initiative: querying the impartiality of a medical witness, requiring a report from a court-appointed expert, or even insisting on seeing and hearing from the person itself – even where, on the face of it, the application is unopposed.
When is a statutory will necessary?
Statutory will applications generally fall into three categories, drawn from the analysis in Re Fenwick:
- Lost capacity – the person previously had testamentary capacity (and may already have a will) but has since lost it, typically through dementia, stroke, or acquired brain injury. The existing will, and what is known of the person’s prior wishes and relationships, gives the Court a real evidentiary anchor.
- Nil capacity – the person has never had testamentary capacity, for example a person born with a significant intellectual disability. These are the most difficult applications, because there is no prior expression of testamentary intention for the Court to draw on at all.
- Pre-empted capacity – typically a minor who has not yet reached the age to make a will but who, for example, has received a substantial damages award and has a short life expectancy, such that waiting for them to turn 18 is not realistic.
A statutory will is most commonly sought where an existing will (or the absence of one) no longer reflects reality – a beneficiary has died, a relationship has broken down, a new carer or partner has emerged, or a substantial asset (often a personal injury settlement) has come into the estate after the person lost capacity. Without a statutory will, the person’s estate would simply pass under an outdated will, or under the rules of intestacy, in a way that plainly does not reflect what they would have wanted.
The test the Court applies
The touchstone for whether an order should be made is whether the proposed will is one the person “probably would” make if they had testamentary capacity. This formulation, drawn from Re APB; ex parte Sheehy [2017] QSC 201 and followed in MZY v RYI [2019] QSC 89, has been affirmed in more recent decisions including Re DPN [2026] QSC 138.
Two points about the test are worth emphasising for clients and referrers:
- It is a question of fact, not a legal presumption. The Court is not simply asking what a “reasonable” person in the relevant person’s position would do – it is asking what this person, with their particular history, relationships and values, probably would have done.
- Satisfying the test does not guarantee an order. Even where the Court is satisfied the proposed will probably reflects the person’s wishes, a residual discretion remains. The Court will have regard to the broader, protective purpose of the legislation, and – because the legislature deliberately did not list exhaustive factors for the exercise of that discretion – each case turns on its own circumstances rather than a fixed checklist.
Recent Queensland authority, including Re Whitehead [2026] QSC 48, has continued to apply and refine this framework, underlining that statutory will applications remain fact-intensive and that the quality of the evidence assembled under section 23 is usually decisive.
Practical considerations
For families and advisers considering an application, a few things stand out:
- Standing matters. The Court must be satisfied the applicant is an appropriate person to bring the application – this is usually (but not always) a family member, attorney, or administrator already closely involved in the person’s affairs.
- Other interested parties need a voice. Anyone who might reasonably expect a benefit from the estate – including people who would lose out under the proposed new will – generally needs to be given the opportunity to be heard.
- Evidence is everything. Because the Court is not bound by the rules of evidence and is actively trying to reconstruct what the person would have wanted, applications succeed or fail on the strength and credibility of the supporting material – medical evidence of incapacity, a clear and detailed draft will, and evidence of the person’s relationships, values and any prior expressions of testamentary intention.
- Costs can come from the estate, but this is discretionary and not guaranteed, which is a relevant consideration before commencing.
Getting advice
Statutory will applications sit at the intersection of succession law, capacity, and family dynamics, and the outcome depends heavily on how the supporting evidence is assembled and presented to the Court. If you are caring for a family member who has lost capacity, or are managing the affairs of a person who never had it, and you are concerned that their current will (or intestacy) no longer reflects what they would want, it’s worth obtaining advice early — both about whether an application is likely to succeed, and about the practical steps needed to put the best evidence before the Court.
This article is general information only and does not constitute legal advice. Every statutory will application turns on its own facts. If you have concerns about a family member’s will or testamentary capacity, please contact our office to discuss your circumstances.
