How Court Ordered Will is Effective When Owner is Unable to Distribute Assets?


A will is an important legal document. This legal document clearly highlights whom you want to receive your property after your death. It also includes specific directions on how you wish your tangible personal property to be distributed.

The decision not to make a will while you are alive or in sound health is not a good decision. If you don’t have a will, you cannot select the recipients of your property or assets.

In case, you become ill or you are not in a good mental position to prepare or make a will, the state you reside in Australia will determine how your property will be divided after your death. This type of will is known as a court ordered will.

What is a Court Ordered Will?

A court ordered will is also known as statutory will. Such type of will is made on behalf of someone who does not have the mental capacity or ability to make their own decisions. This means for those who lack testamentary capacity, someone from the family can apply for a court ordered will.

Since 2006 all Australian states and territories have authorize courts to make a will, alter or revoke a will on behalf of a person who is lacking testamentary capacity.

In recent time, requests for ‘Court Ordered Will” have increased a lot. This is a complex area of the law that requires specialist legal knowledge. It is advisable to take help from will lawyers or specialized will dispute lawyers.

Types of Court Ordered Will

In Australia, there are basically, three types of court ordered wills. The types are determined as per the context in which the “Will” needs to be created. The three types are:

  1. Lost Capacity: This court ordered will applies when the person was mentally capable earlier, but lost it later in life due to some kind of illness or accident. Here, the person’s previous valid Will, if they had drafted one, may no longer be deemed valid or applicable as per law.
  2. Nil Capacity: This court ordered will applies when an individual suffers an illness or accident from birth or in early infancy; leading to loss of capacity and the person does not have the required capacity to make a Will on its own.
  3. Pre-empted Capacity: This court ordered will applies when a person does not have the capacity to make a Will. However, he earlier had the capacity to express reasonable wishes or to form a relationship that should be reflected in a Will, as recognised by the court.

How to apply for a court ordered Will

Each state and territory in Australia has different laws about the distribution of the estate when someone applies for ‘court ordered will’. To understand the laws, it is better to consult the best wills lawyers in your state.

When you apply to the Family Court for court ordered wills, you are asking for legal proceedings and asking the court to make a decision regarding the division of property and finances.

To apply for a Court Ordered Will, an application must be made to the Family Court seeking an order to make a Will. It is the duty of the court to divide property in a fair and just way, taking into account what property is available.

In case, you are not sure as how to apply for a court ordered will in the Family Court, take help of will dispute lawyers. They can guide you all throughout the procedure.

Before the Family Court makes a decision, the court follows a legal procedure to ensure that all people with a proper interest in the estate are represented. Here also, the wills lawyers can help you.

Also, the court must be satisfied that the person, from whom the “will” needs to be created, lacks testamentary capacity and is alive at the time of making the will.

What is testamentary capacity?

In order to make a will, a person must be above the age of 18 years along with other testamentary capacity, which means they must:

  • be over the age of 18 years
  • understand the nature and effect of a Will
  • know about what their assets and liabilities are
  • know the people in their life who may have a claim against the estate

When all the above mentioned criteria are fulfilled, the Family Court grants a Court Ordered Will. In this type of will, division of property and assets are clearly mentioned.

If you need to make a will or apply for a court ordered will, contact Wills Lawyers Perth. Here you will find a team of experienced wills lawyers who can assist you to make a will and provide you with proper assistance regarding every aspect of the law.

Contact Wills Lawyers Perth today!