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Wills for people with a disability

A person with a disability can make a Will as long as they have testamentary capacity.

See Who can make a Will?

If a person with a disability doesn’t have capacity, a person can apply to the Supreme Court to make a Will on their behalf. This kind of Will is called a statutory Will. Anyone may apply to court on the person’s behalf.

Note: Going to the Supreme Court is an expensive process and would not be appropriate for people with small estates.

Get legal advice from a lawyer experienced at working with people who are mentally impaired may prevent challenges occurring at a later stage.

Who can appear at a court hearing

The court may order that the person who lacks testamentary capacity is separately represented. The court may do this on their motion, or if an application is made by any person who is entitled to be heard at the proceeding.

Any of the following people may appear in court proceedings about an application for the court to make a Will for a person who lacks testamentary capacity:

  • the person on whose behalf the Will is to be made
  • a lawyer representing that person
  • an attorney appointed by that person as an enduring power of attorney
  • any guardian or administrator of the person under the Guardianship and Administration Act 2019 (Vic)
  • any other person who the court believes has a genuine interest in the matter.

See ss. 21C—Wills Act 1997 (Vic)(opens in a new window).

Getting a Supreme Court order

The Supreme Court has the power to make an order that authorises a Will to be made.

The court must be satisfied that:

  • the person does not have testamentary capacity
  • the Will reflects what the person with a disability would most likely want if they did have capacity
  • it is reasonable in the circumstances to approve the Will.

The court must agree with the specific terms of the Will and can impose special terms that must be included in the Will.

One of the witnesses to the Will must be the court registrar. The Will must be must be stamped by court seal and deposited with the Court Registry.

The court also has power to revoke a Will that has been made by or on behalf of someone who does not have the mental capacity to make a Will. The Will cannot be removed from the court registrar unless the Will is revoked by the court or the person regains testamentary capacity.

See ss. 21A, 21B, 24, 25—Wills Act 1997 (Vic)(opens in a new window).

Does the person have a guardian or administrator?

If the person with a disability has a guardian or administrator, they are a represented person. A represented person requires a medical opinion if they want to make a Will.

If the doctor finds the person has the capacity to make a Will, the doctor can write an affidavit to that effect. This can be used to support a Supreme Court application.

If the doctor finds the person has the capacity to make a Will, the doctor must write an affidavit to that effect. The affidavit should be attached to a copy of the Will and these documents should be sent to the guardian or administrator. This will enable the person's wishes to be taken into consideration.

Parents of children with a disability

Parents of people with disabilities have a legal responsibility to provide for their children in their Wills. If a parent’s Will makes little or no provision for their child with a disability, it may be subject to an application for testator's family maintenance.

See Estate Administration—Testator's family maintenance.

More information

Legislation

Wills Act 1997 (Vic)

Applies to Wills made after 20 July 1998:

  • Part 3, Div 2—Wills authorised by court for people without testamentary capacity
  • s. 21—the court may order a Will to be made for person without mental capacity to make a Will
  • s. 21A—information the court may need to support an application for person who does not have capacity to make a Will
  • s. 21B—matters that a court will need to be satisfied of before making an order for someone without testamentary capacity
  • s. 21C—persons entitled to appear
  • s. 22D—court may order that a person who lacks capacity is separately represented
  • s. 24—the court may revoke an order that was made on behalf of a person if their testamentary capacity returns
  • s. 25—execution and storage of a will made by a person without testamentary capacity
  • s. 30—recognition of statutory Wills

See Wills Act 1997 (Vic)(opens in a new window).

Guardian and Administration Act 2019 (Vic)

  • s. 3—defines 'represented person' as anyone who has in effect either a guardianship or administration order or both; 'guardianship' and 'administration orders' are also defined

See Guardianship and Administration Act 2019 (Vic)(opens in a new window).

References

The Law Handbook

Fitzroy Legal Service's Law Handbook has a ‘Chapter 16 Disability’. Under the ‘Disability overview’ section there is a sub-section called ‘Capacity and consent’ and a page called ‘Wills and testamentary capacity’. This provides an excellent summary.

See Capacity and consent(opens in a new window).

Updated