Client was not well enough to make a Will – what happens now?

In March 2016 the Court created a statutory Will for a man who had suffered serious injuries in 2012. This resulted in ongoing short-term memory loss. He wanted to make a Will. While he could identify the persons whom he wished to benefit, and demonstrated an understanding of how the Will operates he couldn’t identify the value or detail of what he owned.

The expert medical report on his testamentary capacity to make a Will was ambiguous. Nevertheless the solicitor prepared the Will. It was signed in February 2016.

To be safe the Will was taken to the court. Justice Flanagan said that he didn’t have testamentary capacity. He therefore under, section 24(e), created the Will in exactly the same terms as the Will maker had done. His Honour stated: ‘An order for a statutory will resolves the properly held concerns as to …his… testamentary capacity and accords with the protective nature of such orders.’ You can read the judgment here.


Re MPL [2016] QSC 61,

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