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A court-ordered will – why getting it right is crucial

Today, the court is empowered under section 21 of the Succession Act 1981 (Qld) to authorise a will to be made on behalf of a person who does not have the capacity to independently make a will.

Making sure all information in relation to the proposed will maker (who has lost capacity) is readily available for the court to review is crucial. Careful consideration must be given to all of the circumstances of the proposed will maker’s life.

The recent case of JW v John Siganto as the litigation guardian for AW and CW [2015] QSC 300 is an example of how the court will explore the relationships of the proposed will maker before making an order for a court-authorised will.

The facts of this case are as follows:

  • at the age of 20, after a near fatal accident, RW was left with severe permanent intellectual, physical, communication, behavioural and cognitive disabilities. RW was awarded $5.2 million in a claim for damages;
  • by the age of 30, RW’s parents had given up their own lives to care for RW. Because of their personal devotion to RW, the expenses of daily care had not been incurred. This resulted in the $5.2 million beneficially owned by RW increasing to $9 million;
  • at the age of 17, before RW had been involved in the accident, he was in a de facto relationship with TP. They had two children. TP was deemed an unfit mother by relevant authorities when RW was around 24 years of age. The children who are still minors, now reside with, and are solely care for by, RW’s parents.

The issue in this case was that RW did not have a will. This meant that if RW was to pass, under the laws of intestacy (where someone dies without a will), RW’s estate would pass to his two children in equal shares. This would mean that RW’s minor children would stand to inherit some $4.5 million each at an age where they would not be sufficiently mature to handle that amount of money.

RW’s father made the application for a court-authorised will for RW.

The application was successful and a court-authorised will was granted for RW. The terms of the will were:

  • an independent executor and trustee would manage RW’s estate;
  • a gift of 20% of RW’s residue estate equally to RW’s parents;
  • a gift of 5% of RW’s residue estate to his sister;
  • a gift of 37.5% of RW’s residue estate to each of his children equally to be held on trust until they reach the age of 25 years.

In reaching the decision, the court explored issues like whether RW’s previous de facto partner would be entitled to make a claim against RW’s estate and whether RW’s parents should receive a benefit from his estate.

If you are in circumstances where a statutory will is necessary, there are a number of factors which must be considered which could impact on whether the court will order the proposed will. If you are seeking assistance in a court-ordered will, please do not hesitate to contact me.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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