The escalating infection and healthcare crisis now engulfing the nation may lead to people who suffer the worst complications of the virus, rapidly losing all opportunity – because of intensive care isolation, or physical ability, because of the disease’s progression – to communicate with even their families.
What then for those patients who have no will or whose will is outdated if they no longer have an opportunity to change or make their will?
Queensland law allows a Supreme Court judge to make an urgent will on behalf of someone who lacks legal capacity in appropriate circumstances.
Section 22 of the Succession Act came into force in 2006. It authorises the court to make a will on what it considers to be reasonable terms.
For the most part, this power has so far been exercised for the benefit of people facing an imminent health risk and who have a mental incapacity – for example dementia – that prevents them from making their own will.
Family members can use the process should for example, their loved one fall into or be placed into a coma or their medical condition renders them unconscious as is often the case for patients admitted to intensive care.
It can also be exercised for someone who has all their mental faculties but is unable to communicate with lawyers or family for example because they are in isolation without phone access.
If phone access is available those persons should urgently instruct a solicitor by phone and arrange to have the documents sent to them by email so an attempt can be made to have the will validly signed.
Under COVID-19 temporary legislative measures a will can be validly executed by video if the willmaker and witnesses are in different places but have a video connection to each other. Some special rules apply including a requirement that each page is separately signed. A solicitor should be consulted to ensure the video execution of such a will is correctly performed.
Court-made wills are an extraordinary remedy for extraordinary circumstances.
Obtaining a court-made will is expensive partly because of the urgency – courts have been known to hear applications on weekends to ensure that any will it makes comes into effect before the testator dies – and partly because of the issues and interests that the judge must examine before being satisfied that the proposed arrangements are fair and reasonable.
If for example a person named as executor in an existing will or a family member considers a patient’s will should be changed because of an alteration to his or her circumstances, they can instruct solicitors.
Those solicitors will need to prepare an application and appoint a person as the patient’s trustee who will have their own legal representatives. The solicitors must also notify all other family members, dependents and other potential beneficiaries of the application and the orders the applicant proposes to ask the court to make.
Suppose for example a brain impaired patient had left their $5 mil estate to their two sons in equal shares with each wife standing in the place of any of a son if they predeceased the will maker.
Suppose also that will was made in 2016 before the brain condition affected the patient’s legal capacity and since then a son had died, but not until after separating from and divorcing his wife.
Except in exceptional circumstances, the patient would likely – one would assume, had they had the opportunity to do so – have altered their will to exclude their ex-daughter-in-law and redirect that share in the estate to his children or to the other son still living.
If Son No 2 makes application to the court, the ex-daughter-in-law and his children must be notified of the application and be given an opportunity to be heard in relation to it.
In such circumstances the court would likely favour diverting the deceased son’s share of the estate to his surviving teenage children unless of course Son No 2 had a compelling case, eg a significant disability requiring ongoing domestic care and medical attention.
The spouse too may have an arguable case to make as to why at least part of the benefit of her former spouse’s estate share should be received by her.
Readers will appreciate that preparing such application, gathering supporting evidence, preparing supporting affidavits and the hearing of each party’s arguments – if all crammed into a 48 hr period due to the patient’s medical emergency – is a highly intensive exercise.
A judge will not though make a will or make a variation to an existing will unless all interests have been properly considered and might simply refuse the application.
An actual example of an application made in circumstances similar to those discussed above can be viewed here.