How people who have lost capacity can make and update their Will
By Anna Hacker (AUT Legal Services Pty Ltd), Accredited Specialist – Wills & Estates, National Manager, Estate Planning, Australian Unity Trustees Ltd.
While many people would assume that once a person loses testamentary capacity, their ability to update their Will ceases, but this is not the case. Each state in Australia allows for statutory Wills to be approved by the relevant Supreme Court for signing on their behalf.
The process involves an application and a Court hearing. The Court will consider whether the proposed Will is what would have been intended by the person lacking capacity. So, importantly, it is not what the people proposing the Will want but, rather, there needs to be a clear indication that the terms of the Will would have been accepted by the person lacking capacity.
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