Emergency Wills made by court

Coma & Dementia Wills

If a person loses “testamentary capacity” they would ordinarily be prevented from making or changing their will unless and until they regain the mental facilities to do so.

This means for someone with no will, their estate would upon their death, be distributed according to the rules of intestacy.

And for someone whose family circumstances have changed since making their will, their estate would be distributed in accordance with the will without any consideration to the change in family status of named beneficiaries.

A Supreme Court judge can however be asked to approve the terms of a will or changes to an existing will for someone whose physical condition prevents them from doing so themselves, including for people who can’t do so because of a crisis or other emergency situation in which they are placed.

Preparing a court application for such a will (be it as a result of a coma or dementia or another reason), gathering supporting evidence, preparing supporting affidavits and hearing of each party’s arguments – often all crammed into a 48 hr period due to the patient’s medical emergency – is a highly intensive exercise.

Contact us online or call 1300 580 413 today to confidentially discuss any queries you may have about an application to the court for such Coma & Dementia Wills. We can assist as urgently as may be required.

Coma & Dementia Wills

How quickly will a court act to approve an emergency will?

If  a person is in a life-threatening condition or situation, the courts will proceed quickly – and even hear applications on weekends - so that any will it authorises be made comes into effect before the person or patient might die. In other situations eg dementia ythere may not be the same degree of urgency. Applications are by no means a “rubber-stamp”: the judge must consider everyone’s different interests and be satisfied that the terms of the will it orders to be made are fair and reasonable. If a person dies with no will or with terms of an existing will they would otherwise have changed:

  • if there is no will, assets will be distributed according to the “rules of intestacy” rather than how the person might prefer. The deceased's assets will in some cases even be required to be paid to the government.
  • if there is an existing will, it may be outdated. Assets may be distributed to someone whose link to the family has been severed eg as a result of separation or divorce.
  • if there is an outdated will in which a family member has not been adequately provided for particularly due to ongoing personal or nursing care having been provided during illness, the estate may not be distributed according to the wishes of the patient and may be faced with costly litigation dealing with a family provision claim.

In what circumstances can a court be asked to make or change a person's will?

An "emergency" will (or emergency changes to an existing will) can be sought in each of the following situations:

  1. by anyone whose family member or close relative has no "testamentary capacity" due to illness, eg dementia, coma, delirium;
  2. by anyone whose family member or close relative is unable to communicate for medical reasons eg, because they are in isolation, in intensive care, being treated in a secured hospital ward or for non-medical reasons such as - to give an extreme example - they are being held hostage by terrorists.
  3. by the person named as executor or trustee in an existing will in either of the circumstances referred to in 1 or 2.

Family members confronted with such a situation should consult a solicitor to prepare and serve a court application quickly.

What's involved with an application for a court ordered emergency will?

Such applications require detailed preparation often with a rapid turnaround time by skilled lawyers expert in the deceased estates' field.

A judge will only make a will or make a variation to an existing will if all interests have been properly considered and the arrangements proposed are appropriate in the circumstances.

QEL has the knowledge and experience to urgently prepare an effective application supported by affidavits that record all relevant background facts and circumstances, particulars of relatives and dependents and the persons' assets.

QEL also assist with notifying all other family members, dependents and other potential beneficiaries and persons  of the application and the orders the applicant proposes to ask the court to make.

Start the process

Contact our Wills and Estate lawyers by sending us an email and we’ll get in touch shortly, or phone between 8:30AM and 5:00PM Monday to Friday — we would be delighted to speak.

Office hours — 1300 580 413

Monday 8:30 am - 6:00 pm
Tuesday 7:30 am - 6:00 pm
Wednesday 7:30 am - 6:00 pm
Thursday 7:30 am - 6:00 pm
Friday 7:30 am - 5:00 pm
Saturday Closed
Sunday Closed

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