Complex questions arise about the capacity of loved ones who want to make their Wills while they’re subject to VCAT Guardianship and Administration Orders. However, with the right steps in navigating this challenging aspect of estate planning and professional guidance when engaging with VCAT, it is possible to ensure that their Wills are able to reflect their wishes.
This blog explores the implications of a person making a Will while they are subject to VCAT Administration Orders.
Understanding VCAT Administration Orders
VCAT makes Administration Orders to protect those unable to manage their financial and legal affairs because they lack the capacity to do so because of age, illness, disability or other reasons. VCAT’s Orders appoint administrators to manage financial matters, including property, investments, and other assets.
Capacity to make a Will
The ability to make a Will is based on legal capacity, which requires that the Will-maker understands:
- the nature and effect of a Will;
- the extent of assets being disposed of;
- the claims of those who might reasonably be expected to benefit from the Will (family provision claims to contest the Will);
- that Will-makers are not suffering from any delusions that could affect the distribution of their estate.
How VCAT Administration Orders impact on Will-making
Presumption of incapacity
VCAT generally appoints administrators based on the presumption that individuals lack capacity to manage their financial affairs. This presumption could also extend to their capacity to make a Will, as they may not be able to make or change their Will.
However, the tests for the capacity to make a Will are not the same as lacking capacity to manage affairs, and loved ones may still have the capacity to make their Will even though they are subject to a VCAT Administration Order. In other words, just because individuals may be subject to VCAT Administration Orders does not automatically mean that they do not have the capacity to make their Wills.
If you believe a loved one has capacity to make their Will but you are facing hurdles due to VCAT Administration Orders, you should seek legal advice from an estate planning lawyer.
Speak with an estate planning lawyer today: 03 9014 1299
VCAT's role in Will-making
VCAT has options available to it, where appropriate, to intervene in the estate planning requirements for a person under VCAT Administration Orders.
Statutory Will
VCAT can authorise a Statutory Will for those who lack testamentary capacity. This ensures that the Will actually reflects the wishes and best interests of the Will-maker and that the estate will be distributed according to their likely wishes rather than according to intestacy laws (when a person dies without a valid Will) to prevent disputes among family members.
Review of capacity
VCAT can review a person’s capacity when there is evidence suggesting that the individual has regained sufficient capacity to make a Will.
Assessment of capacity
If you believe that loved ones either retain or have regained capacity to make their Will, you need to seek a formal capacity assessment from a qualified medical professional to provide evidence in support of a VCAT application.
Get help from an estate planning lawyer
Working with an experienced estate planning lawyer can help navigate the complexities of applying for a Statutory Will. A lawyer can assist in drafting the Will, gathering necessary evidence, and representing your case before VCAT.
If your loved one’s condition changes whilst they are subject to VCAT Administration or Guardianship Orders, regular reviews of their capacity are essential. This can ensure that any significant changes in their condition are documented and considered, potentially allowing for updates to their Will if capacity is regained.
Contact David Davis Lawyers
Phone: 03 9014 1299
Email: admin@ddavis.com.au