Key Takeaways
- A statutory will in Victoria can be authorised by the Supreme Court under section 21 of the Wills Act 1997 (Vic) for a living person who lacks testamentary capacity (eg after stroke, dementia, acquired brain injury); it is not a substitute for ordinary estate planning or informal family agreement.
- The process is two‑stage: obtain leave to apply, then satisfy section 21B — the Court must be satisfied the person lacks testamentary capacity, the proposed will reflects the intentions they would likely have had if capable, and making the order is reasonable in all the circumstances.
- Section 21A governs evidence: applications should include a draft will, medical proof of incapacity, assets and liabilities, earlier wills, details of relationships and beneficiaries, and, where relevant, company/trust/shareholder/succession structures; contemporaneous and independent evidence carries particular weight.
- The Court’s task is to infer the will‑maker’s probable testamentary intentions from objective, person‑specific evidence — not to reallocate the estate according to an abstract sense of fairness (see Boulton v Sanders and Plowright v Burge).
- Practical points: any person may apply but applicants who stand to benefit face close scrutiny; common disputes involve competing family accounts and complex asset structures; early evidence gathering, identifying conflicts, and testing the proposed will against existing financial/succession arrangements are critical, and the Court may refuse if evidence is inadequate or speculative.
When Can the Court Authorise a Statutory Will in Victoria?
A statutory will in Victoria may be authorised by the Supreme Court for a living person who lacks testamentary capacity. Under section 21 of the Wills Act 1997 (Vic), the Court may authorise a new will or revoke an existing will where the statutory requirements are satisfied.
The Court does not simply decide what distribution appears fair. It must be satisfied that the proposed will reflects the intentions the person would likely have had if they retained testamentary capacity, and that making the order is reasonable in all the circumstances.
- Medical evidence must support the loss of testamentary capacity.
- Previous wills and estate-planning decisions may be important.
- The Court can consider relationships, assets, prior statements and patterns of financial support.
- The proposed will must be supported by evidence of the person’s likely intentions.
A statutory will is a court-authorised estate-planning remedy, not a way for family members to simply rewrite a person’s will after capacity has been lost.
When a business owner, professional or high-net-worth individual in Victoria loses the capacity to make or update a valid will, their family cannot simply prepare and sign one on their behalf. In appropriate cases, the Supreme Court of Victoria may authorise a statutory will in Victoria under section 21 of the Wills Act 1997 (Vic). This may arise after a stroke, dementia diagnosis, acquired brain injury, or another condition that leaves a person who lacks testamentary capacity.
The statutory-will jurisdiction is not a substitute for ordinary estate planning or informal family agreement. The applicant must first obtain leave to apply and then satisfy the test under section 21B. The evidence must address the will’s proposed terms, the person’s relationships, assets, prior estate-planning decisions, and other circumstances relevant to their intentions.
The Court’s task is not to impose what appears fair in the abstract. It must be satisfied that the proposed will is one the person would be likely to have made if they had testamentary capacity. This article explains who may apply, how the two-stage process operates, what evidence the Court requires, and the key considerations involved in seeking Supreme Court authorisation.
When Can the Supreme Court Authorise a Statutory Will in Victoria?
The legal framework for a statutory will in Victoria is found in Division 2 of Part 3 of the Wills Act 1997 (Vic). Under section 21 of the Wills Act 1997 (Vic), the Supreme Court may authorise a will to be made, or an existing will to be revoked, for a living person who lacks testamentary capacity. Any person may apply, although the applicant will usually be a family member, administrator, guardian, or another person with a genuine interest in the proposed estate arrangements.
The Court does not simply decide what distribution appears fair. Its role is to assess whether the proposed will reflects the testamentary intentions of the person concerned. This requires close attention to that person’s relationships, prior wills, statements, conduct, values, assets, and financial arrangements.
Section 21A identifies the information that may be placed before the Court. Depending on the circumstances, the application may include a draft of the proposed will, evidence of the person’s incapacity, details of their assets and liabilities, copies of earlier wills, information about potential beneficiaries and evidence of any wishes previously expressed. The Court may also consider whether the proposed terms could affect a person who might otherwise be entitled under an existing will or the intestacy provisions.
Section 21B sets out the matters the Court must consider before authorising a statutory will. The Court must be satisfied that:
- the person lacks testamentary capacity;
- the proposed will reflects the intentions they would be likely to have, or could be expected to have, if they had capacity; and
- making the order is reasonable in all circumstances.
The earlier decision in Boulton v Sanders [2004] VSCA 112 remains significant because it illustrates the care required when attributing hypothetical testamentary intentions to a person who cannot express them. The statutory language has since been amended, but the case continues to underscore the need for persuasive, person-specific evidence.
In Plowright v Burge [2005] VSC 490, the Supreme Court considered whether an existing will continued to reflect the wishes of a woman whose circumstances and personal relationships had changed after she sustained a serious brain injury. The decision demonstrates that Supreme Court authorisation is not based on an abstract view of fairness. It depends on whether the proposed will can be justified by evidence of the person’s own probable intentions.
How Does the Supreme Court Decide Whether to Authorise a Statutory Will in Victoria?
When considering an application for a statutory will in Victoria, the Supreme Court focuses on the person whose estate plan is under review. The issue is not what the applicant, the family, or the Court considers fair. It is whether the proposed will reflects the intentions the person would have formed, or could have been expected to form, if they had testamentary capacity.
What evidence does the Court require?
Section 21A of the Wills Act 1997 (Vic) allows the Court to require detailed information about the proposed will and the person’s circumstances. The evidence will include a draft will, medical material confirming that the person lacks testamentary capacity, details of their assets and liabilities, earlier wills, and information about their relationships with family members and potential beneficiaries.
The Court may also consider statements and conduct that reveal the person’s values, preferences, or estate-planning intentions. Where the estate includes business or investment interests, the evidence may need to address companies, trusts, shareholder arrangements, loans, superannuation, jointly owned property, and succession structures. This lets the Court assess the proposed will within the person’s wider financial affairs.
How does the Court determine the person’s intentions?
The Court determines the person’s intentions from objective, reliable, and person-specific evidence. An earlier will may be influential, but it is not conclusive. The Court may also examine the person’s history of financial support, significant relationships, treatment of family members, statements made while they had capacity and established an approach to estate planning.
In Boulton v Sanders [2004] VSCA 112, the Victorian Court of Appeal emphasised the care required when attributing testamentary intentions to a person who cannot confirm them. Although the decision concerned an earlier version of the legislation, it remains a useful caution against relying on assumptions. The evidence must support the specific provisions of the proposed will.
Does the Court choose the fairest distribution?
No. The statutory-will jurisdiction does not allow the Court to redesign an estate according to an abstract view of fairness. The circumstances of potential beneficiaries may be relevant, including the possibility of a future family provision claim, but those matters do not replace the test under section 21B.
In Plowright v Burge [2005] VSC 490, material changes in the will-maker’s relationships and circumstances supported the authorisation of a new will. The decision shows that changed circumstances may justify intervention, provided the proposed terms remain connected to the person’s probable testamentary choices.
When might the Court refuse to authorise a statutory will?
The Court may refuse Supreme Court authorisation where the evidence of incapacity is inadequate, the proposed provisions are speculative, relevant beneficiaries have not been identified, or the application appears to advance the applicant’s interests without sufficient evidentiary support.
A persuasive application must therefore do more than present a reasonable distribution. It must demonstrate why the proposed will reflects the intentions of the person who lacks testamentary capacity and why authorisation is reasonable in all the circumstances.
What Disputes Commonly Arise in Statutory Will Applications in Victoria?
Applications for a statutory will in Victoria commonly arise after a significant change in a person’s health, family relationships, or financial affairs. The legal test may be settled, but the practical dispute often concerns whether the proposed provisions genuinely reflect the person’s intentions.
One recurring issue is that an existing will no longer reflects the person’s circumstances. The will may have been made before a divorce, remarriage, estrangement, the birth of grandchildren, the sale of a business or a substantial change in wealth. If the person later loses testamentary capacity, the existing document may no longer deal appropriately with the people or assets that became important to them. In Plowright v Burge [2005] VSC 490, the Court considered whether an earlier will remained appropriate after serious injury and material changes in the will-maker’s personal circumstances. The decision shows that the Court examines the person’s actual history and relationships rather than assuming that an old will should remain unchanged.
Disputes also arise where family members give competing accounts of what the person intended. One relative may rely on an earlier will, while another points to later statements, financial support, or changes in the relationship. The Court will place greater weight on contemporaneous documents, independent witnesses, financial records, professional advice, and consistent conduct patterns. Evidence prepared after a dispute has emerged may attract closer scrutiny, particularly where the applicant stands to benefit under the proposed will.
For business owners and high-net-worth individuals, complexity often lies in the asset structure. The estate may involve private companies, discretionary trusts, shareholder loans, jointly held property, superannuation, and succession arrangements. A proposed statutory will must operate coherently with those structures. Where testamentary trusts form part of the proposed estate plan, their tax and succession consequences should also be considered, particularly in light of recent changes affecting testamentary trust disputes and post-budget estate planning.
Delay can also materially affect the application. Health may deteriorate, assets may be sold, relationships may change, and key witnesses may become unavailable. Early evidence gathering is therefore critical. A carefully prepared application should identify evidentiary gaps, affected beneficiaries, potential conflicts and structural issues before Supreme Court authorisation is sought.
Concerned an Existing Will No Longer Reflects Their Intentions?
Statutory will applications can involve complex questions about testamentary capacity, family relationships, earlier wills and the evidence needed to establish a person’s likely intentions. Early advice can help determine whether an application is appropriate and what evidence should be preserved.
Book a Confidential ConsultationWhat Should Be Considered Before Pursuing or Defending a Statutory Will Application?
A statutory-will application should not begin with drafting the proposed will. It should begin with an evidence strategy. The central task is to establish, as objectively as possible, what the person’s likely intentions would have been if they retained testamentary capacity. That requires more than family recollections or a fair distribution.
Before seeking Supreme Court authorisation, the applicant should identify the available medical evidence, earlier wills, estate-planning files, financial records, correspondence, and independent witnesses. Attention should be given to documents created before the person loses capacity, as contemporaneous material will usually carry greater weight than accounts prepared after a dispute has emerged. Where the estate includes companies, trusts, shareholder loans or succession arrangements, the proposed will should also be tested against those structures before proceedings are commenced.
Potential conflicts must be addressed early. An applicant who stands to benefit under the proposed will should expect scrutiny of both the evidence and the drafting process. Independent evidence, clear disclosure, and careful identification of all affected parties can reduce the risk that the application is characterised as self-interested.
A person opposing the application should focus on the statutory criteria rather than simply advancing a competing view of fairness. Relevant issues may include whether the proposed dispositions are supported by the person’s history, whether material beneficiaries or assets have been overlooked, and whether the application presents an incomplete account of the person’s relationships or financial affairs.
The strongest position, whether pursuing or defending an application, is built before the hearing. Early analysis of evidentiary gaps, procedural risks, and the practical effect of the proposed will is often decisive.
Frequently Asked Questions
Can someone make a will for a person with dementia in Victoria?
A family member cannot make or sign a will on behalf of a person with dementia. If that person lacks testamentary capacity, the Supreme Court of Victoria may authorise a statutory will in Victoria under section 21 of the Wills Act 1997 (Vic). The diagnosis alone is not decisive, as the Court requires evidence about the person’s actual decision-making capacity and the terms of the proposed will.
Who can apply for a statutory will in Victoria?
Any person may apply to the Supreme Court for an order authorising a statutory will. In practice, the applicant is often a spouse, adult child, guardian, administrator, or another person involved in the affairs of the person who lacks testamentary capacity. An applicant who may benefit under the proposed will should expect their evidence and potential conflict of interest to be closely examined.
What does the Court consider when approving a statutory will?
The Court considers whether the person lacks testamentary capacity, whether the proposed will reflects their intentions, and whether making the order is reasonable in all the circumstances. Relevant evidence may include earlier wills, medical reports, financial records, relationships, previous statements, and established patterns of support. The Court does not approve a will merely because its terms appear fair.
Can the Court change an existing will after someone loses capacity?
Yes. Section 21 allows the Supreme Court to authorise a new will or the revocation of an existing will for a living person who lacks testamentary capacity. This may be appropriate where the existing will no longer reflects material changes in the person’s relationships, assets, or succession arrangements. In Plowright v Burge [2005] VSC 490, changed personal circumstances were central to the Court’s consideration of whether a replacement will should be authorised.
What happens if no statutory will application is made?
If the person dies without a valid will, their estate will be distributed under Victoria’s intestacy laws. This can produce significant consequences in blended families, particularly where a surviving partner and children from another relationship have competing statutory entitlements. For further detail, see our analysis of intestacy in Victoria and blended-family estate disputes. If a valid existing will remains in place, it may instead continue to govern the estate even if it no longer reflects later relationships or financial circumstances.
When Should You Seek Advice About a Statutory Will in Victoria?
A statutory will in Victoria may be appropriate where a person has lost testamentary capacity, and their existing estate arrangements no longer reflect their intentions. Because the Supreme Court must be satisfied that the proposed will meets the requirements of sections 21 and 21B of the Wills Act 1997 (Vic), early attention to medical evidence, prior wills, financial structures, and family relationships is critical.
For business owners, professionals and high-net-worth families, these applications can also intersect with trusts, companies, superannuation, and succession planning. Strategic advice at an early stage can help identify whether an application is appropriate and what evidence will be required.
Learn more about Pentana Stanton Lawyers’ wills, estates & probate services or book a consultation to discuss your circumstances.
This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.
