In some circumstances the Supreme Court can make a Will for a person who lacks testamentary capacity.
This power is given to the court in the Wills Act (Vic.).
Such Wills are sometimes referred to as “statutory Wills”.
The court has the power to make a Will which reflects the intentions of the disabled person and “what the intentions of the person might reasonably be expected to be”.
The quoted part of the last sentence comes from the legislation itself and seems to allow a Will to be made by the court for a person who has lacked testamentary capacity from birth. In such a case it might be impossible to ascertain what the intentions of the person might be. Compare this with the situation in which a person has lost testamentary capacity in an accident and there might exist evidence of what that person’s intentions about his or her estate were.
The provisions are sometimes used when unsuitable beneficiaries might otherwise benefit from the estate when there is no Will. When there is no Will (called intestacy) a person’s estate will be distributed according to a formula in legislation. This result could be seen to be inappropriate in a situation where a person’s brother, for example, had been convicted of stealing that person’s assets during his or her lifetime and would otherwise take the entire estate upon an intestacy.
There are many other situations where injustice might result if an estate were left according to a strict statutory formula.
The court also has the power to revoke an existing Will of a person now lacking testamentary capacity. Again, allowing an existing Will to stand might result in substantial injustice in a situation where the person has lost the capacity to revoke his or her Will.