Imagine your parent is famous, wealthy, and revered—like legendary crooner Tony Bennett—yet in their final years, they lose the capacity to manage their own affairs. What happens to their legacy? Who ensures their true wishes are honoured?
This real-life story of Tony Bennett and his family provides a poignant backdrop for a legal safeguard not many are familiar with: Statutory Wills. In Queensland, this protective legal mechanism allows a Will to be made on behalf of someone who no longer has capacity. Here, we unpack how this works, why it matters, and what it could mean for families navigating similar challenges.
What Is a Statutory Will?
Testamentary freedom is a cornerstone of our legal system: the right to decide how your estate is distributed when you die. But what happens if you lose the capacity to make that decision.
That’s where Statutory Wills come in. These are Wills made by the Supreme Court on behalf of someone who lacks the mental capacity to make one themselves. This could be due to dementia, intellectual disability, illness, or injury.
In Queensland, this jurisdiction was introduced in 2006 and is governed by section 21 of the Succession Act 1981 (Qld). The process is focused not on what’s fair in a general sense, but on what the person themselves would have wanted—had they been able to articulate their wishes.
The Tony Bennett Example: How It Could Play Out in Queensland
Tony Bennett was diagnosed with Alzheimer’s disease in 2016 and passed away in 2023. Allegations of undue influence and mismanagement of his estate have since surfaced—particularly concerning one son’s control over assets and income.
If the Bennett family lived in Queensland, his daughters may have been able to apply to the Supreme Court for a Statutory Will to ‘correct’ these perceived inequities—assuming Tony was still alive at the time.
The court would examine:
- His lack of testamentary capacity.
- The appropriateness of the applicants (in this case, his daughters.
- His likely intentions
- The structure and value of his estate.
- The likelihood of future legal disputes.
Ultimately, the goal would be to ensure that his estate reflected what he would have wanted—not what someone else orchestrated under questionable influence.
The Legal Framework in Queensland
To make a Statutory Will, the Court must be satisfied that:
- The proposed Will-maker lacks capacity
- The applicant is an appropriate person.
- All interested parties have had an opportunity to be heard
- The Will reflects the likely intentions of the Will-maker.
- It is reasonable to make the Will under all circumstances
This process is protective, not adversarial. The judge is not there to “referee” a dispute but to determine what is best for the person who lacks capacity.
How Does the Court Decide?
The Court weighs various forms of evidence:
- Medical reports confirming loss of capacity and the likelihood of regaining it.
- Draft Wills and details of prior Wills
- Statements of past wishes
- Family dynamics and relationships
- Financial dependence and historical support
Crucially, the Court must consider the risk of future legal claims if it does not authorise a Statutory Will. If someone is left out or treated unequally, will that spark a costly dispute down the track?
Ethical and Strategic Considerations
Lawyers involved in Statutory Will applications must navigate unique ethical waters:
- Avoiding conflicts of interest, especially where the applicant stands to benefit
- Considering whether to appoint a litigation guardian to independently represent the proposed Will-maker
- Ensuring all parties are transparently informed and have access to legal advice
The process should always serve the best interests of the person without capacity—not just satisfy the desires of the applicants.
Why This Matters More Than Ever
With dementia rates expected to double by 2058, more families will face situations where a loved one can no longer express their wishes. The Statutory Wills jurisdiction offers a way to respect those wishes, avoid disputes, and protect vulnerable individuals.
At Resolve Estate Law, we believe that planning for the future is an act of care. And when someone is no longer able to make decisions, our legal system can—and should—step in to help honour their voice.
Whether you’re a family member worried about your loved one’s legacy or a professional advisor navigating complex estate matters, understanding the role of Statutory Wills is essential.
It’s not about rewriting history. It’s about ensuring that even when someone can no longer speak for themselves, the story of their life—and the way it’s honoured—remains true to who they were.
Talk to the compassionate and expert team at Resolve Estate Law. We’ll guide you through every step of the process.
