I read with interest a recent decision of the Supreme Court, in which a Will was authorised to be made for a minor.
What is the test for circumstances in which a Court can authorise the making of a Will for a minor?
Section 19 of the Succession Act 1981 (Qld) states that the Court may make an order authorising a minor to make a Will only if the Court:
- Is satisfied that the minor understands the nature and effect of the proposed Will, and the extent of any property disposed of under the proposed will;
- Is satisfied that the proposed Will accurately reflects the intentions of the minor;
- Is satisfied that it is reasonable in all the circumstances that the order be made; and
- Has approved the proposed Will.
Why did the Judge authorise a Will to be made in this case?
In Re K the Judge ordered that the minor was authorised to make a Will for the following reasons:
- K was 16 years old;
- When K was four, he was involved in a serious motor vehicle accident;
- K’s mother had always been a carer for him; he had virtually nothing to do with his father;
- K had been involved in personal injury litigation, and the matter is expected to settle before K reaches the age of 18, for a significant award of damages;
- K was examined by a child psychiatrist, who was able to report that:
(a) K clearly understood what a Will was, and its effect; and
(b) K also understood whom he would like to leave his estate to, were he to pass away;
- K was of the strong view that his mother should inherit his entire estate;
- If K passed away without a Will, the distribution of his estate under the rules of intestacy would not match his wishes, as his estate would be divided equally between his mother and estranged father.
The Judge ordered that K be authorised to make a Will which accurately reflected K’s wishes.
I am a minor and I feel that I need to make a Will before I turn 18 – what should I do?
If you or your loved one is a minor who needs to make a Will, I recommend you obtain advice from an experienced estate litigation lawyer. Please contact me if you would like advice or assistance.
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