Will of a person with an intellectual disability

Some intellectually disabled people can make valid wills and some cannot. There are two basic requirements for the will to be valid. Firstly, the will-maker must have ‘testamentary capacity’ (be able to make a proper will). This requires that the person:

• knows what a will is;
• realises in general terms the amount and type of property they are disposing of; and
• is able to weigh the moral claims that they should be considering.

Secondly, the will-maker must know and approve of the contents of the will. There is a strong presumption that this is the case where the will has been read by or to the will-maker. To protect a person with a disability’s will from challenge, a number of precautions should be taken.

While it is not necessary that the will-maker understands all of the legal terms in the will, it is preferable that the will be uncomplicated and in plain language. One of the witnesses to the will should be someone such as a psychologist. This person should sign a statement setting out that they were satisfied that the will-maker had testamentary capacity and knew and approved of the contents of the will. This statement should also set out the person’s basis for being so satisfied, including details of the person’s conversation about the will with the will-maker.

If the will-maker cannot read, the statement should also say that prior to the will being signed, the witness heard the will read over to the will-maker who then stated that they approved the will.

The will should be drawn up by a solicitor experienced in will-making and, preferably, in dealing with intellectually disabled people, so that proper precautions are taken. The solicitor should keep comprehensive notes. If there is doubt as to whether a particular person is capable of making a valid will, the person should still be allowed to make the will.

If a person with an intellectual disability dies with no will or with an invalid will, then the ‘intestacy’ laws apply.

Under the Testators Family Maintenance Act 1912 (Tas) a person may, in certain circumstances, ask the Supreme Court to vary someone else’s will. A person with a disability or someone on their behalf can do this just as anyone else can.

Statutory Wills

Provision exist under the Guardianship and Administration Act 1995 (Tas) for the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT) to make a statutory will in appropriate circumstances.

When is it appropriate to make a Statutory Will?

Situations in which it may be appropriate to make a Statutory Will include where:

• a person had testamentary capacity, never made a valid will and subsequently loses testamentary capacity; or
• a person never had testamentary capacity and never made a valid will.

In these situations, when the person dies their property is distributed according to the rules of intestacy. It may be appropriate that provision be made in a Statutory Will for other or additional persons. An example of such provision may be for a person who has had the long term care of another person who lacks testamentary capacity.

The Tribunal would not normally make an order for the execution of a Statutory Will if the proposed beneficiaries under the Statutory Will are the same persons who would inherit the person’s estate on an intestacy.

The Tribunal cannot make an order for the execution of a Statutory Will if there exists a prior valid will. If an application is made to the Tribunal for an order for the execution of a Statutory Will, the Tribunal is required to make such enquiries as are reasonable as to the possible existence of any prior will.

Before the Tribunal will make an order for the execution of a Statutory Will, it must be satisfied that the person for whom the will is proposed does not have the capacity to make a valid will. In addition, the Tribunal must consider the following matters:

• any evidence relating to the wishes of the person for whom the will is proposed to be made, which may include the person’s present wishes as well as those expressed in the past;
• the likelihood of that person acquiring or regaining capacity to make a will at any future time;
• the interests of any person who would be entitled to receive any part of the estate of the person for whom the will is proposed to be made if the person died intestate;
• the likelihood of an application being made under the Testator’s Family Maintenance Act 1912 (Tas)
• the circumstances of any person for whom provision might be expected to be made;
• any gift for a charitable or other purpose that that person might reasonably be expected to give or make by a will;
• the likely assets of the estate of the person for whom the will is proposed.

If the Tribunal determines that it is appropriate to make a Statutory Will it will make orders for its preparation. Once executed, a Statutory Will has the same effect as if it had been made by the person and the person had testamentary capacity.