If a person lacks the capacity to make a new Will or amend an existing Will, friends or relatives of the deceased can make an application to the court to authorise the making of a Will in certain circumstances. These Wills are commonly referred to as statutory wills.   Given the aging population and the increasing trend towards individuals not having a Will in the first instance and perhaps more importantly, Wills that have been made are not being updated as individuals’ circumstances change.  In light of these trends, it is likely that we will see an increase in the number of Statutory Wills being made, which is cause for concern given the potential for incidences of identity fraud as discussed below.   A statutory will can be a useful method of ensuring that an individual’s testamentary intentions are carried out. In such situations the Court does not make a will: it determines whether to authorise a Will proposed by the applicant. Before the court can act it must be satisfied that:

  • the person does not have capacity to make or amend an existing Will; and
  • the proposed or amended Will is or is reasonably likely to be one which the person would have been made if he or she had capacity.

The issue of de-identification – the removal of all information which would enable an individual to be identified (which is a first for Qld) and the related risk of identity fraud as considered by Ann Lyons J in her judgement from Re JT [2014] QSC 164 below, is an area of concern for everyone, with instances where assets (even houses) are being sold by individuals that don’t own them, using stolen identification to instruct settlement agents and lawyers.

 

“I consider that in any reasons that are published all reference to JT should be in a manner which will not enable her to be identified. The current proceeding relates to her will which is normally a document the contents of which would not normally be revealed until after her death. Furthermore the Court is required to consider extensive personal information including medical and financial information which would normally be information which is kept private.

 

The potential for identity fraud is well recognised and such potential is greatly increased when extensive details of medical, financial and banking information are published in relation to a clearly identified person particularly one who does not have the capacity to be vigilant in relation to the management of their own affairs”.

 

Should you have any queries around estate planning, would like to have a Will drafted or update a Will you have previously drawn up, please don’t hesitate to contact us.

Bruce Havilah

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