---
title: "Making a Will for Someone Who Can’t:"
url: https://nurturelaw.com.au/making-a-will-for-someone-who-cant/
type: post
date: 2025-06-03
modified: 2025-05-06
markdown_url: https://nurturelaw.com.au/making-a-will-for-someone-who-cant.md
author: "Kelly Gatehouse"
---

# Making a Will for Someone Who Can’t:

At Nurture Law, we often encounter families facing one of life’s more delicate challenges – how to ensure the wishes of a loved one who lacks the capacity to make a will are still respected. Whether due to illness, injury, or disability, some individuals are unable to make their own will. In these cases, the law in Queensland provides a solution: the *statutory will*. 

**What Is a Statutory Will?** 

A statutory will is a court-authorised will made on behalf of someone who cannot legally make one themselves due to a lack of testamentary capacity. Under the *Succession Act 1981 (Qld)*, the Supreme Court of Queensland can approve a will for: 

- Adults who lack capacity, or 

- Minors in special circumstances. 

**When Might a Statutory Will Be Needed?** 

This process is not for everyday estate planning — it is a powerful legal tool for unique situations, such as: 

- The person has never made a will and the standard intestacy laws would produce an unfair or unintended outcome. 

- Their existing will is outdated due to significant life events like marriage, divorce, or having children. 

- The person has substantial assets (like compensation payouts or trusts) requiring careful estate planning. 

- The default beneficiaries under intestacy are estranged or unsuitable. 

*Example*: A young man receives a large compensation payout after a childhood accident. He’s been cared for by his aunt, not his estranged parents. Without a statutory will, the funds may automatically pass to his parents — something he likely would not have wanted. 

**What Does the Court Look At?** 

Before approving a statutory will, the Court must be satisfied of five things: 

- The applicant is suitable to make the application. 

- All interested parties have been given a chance to be heard. 

- There’s strong evidence the person lacks capacity. 

- The proposed will reflects what the person would likely have wanted. 

- It’s appropriate for the Court to make the order. 

Supporting documents include: 

- Medical evidence of incapacity. 

- Details of family, financial and personal circumstances. 

- Any previous wills or known wishes. 

- A draft will for consideration. 

**Timing Is Everything** 

The Court can only make a statutory will while the person is still alive. Once the person passes away, the opportunity is lost — which is why seeking early legal advice is crucial. In urgent cases, applications can be fast-tracked. 

**What Happens After Approval?** 

Once approved, the Probate Registrar signs and seals the will. The Court keeps the original document safely on file. 

**What About Costs?** 

Costs depend on the complexity of the case — they may include legal fees, medical reports, and court filing expenses. The Court may order that the costs be paid from the person’s estate, especially if the statutory will achieves a fairer or more appropriate result than intestacy or any previous will. 

**Key Considerations Before Applying** 

- Is it in the person’s best interests? 

- Is the estate large enough to justify the process? 

- Are there commercial realities to consider — like superannuation or family provision risks? 

- Is there evidence of what the person would have wanted, even if informally? 

**How Nurture Law Can Help** 

We understand the personal and emotional complexity of statutory will applications. Our experienced team can: 

- Navigate complicated family and financial dynamics. 

- Gather the right medical and legal evidence. 

- Draft a will that reflects dignity, care and foresight. 

- Represent you in the Supreme Court of Queensland. 

We approach every matter with clarity, compassion, and professionalism — ensuring peace of mind when it matters most.