On 17 December 2014, Justice Philippides of the Supreme Court of Queensland, in RKC v JNS [2014] QSC 313, authorised a statutory will on behalf of a minor pursuant to the court’s powers under the Succession Act 1981 (Qld) (Act).
What is a statutory will?
A statutory will is a will made or authorised by the court on behalf of an individual who lacks capacity to make their own will.
In Queensland, the Act provides the court with the power to authorise a will on behalf of an individual lacking capacity.
What happened in RKC v JNS [2014] QSC?
The facts of this case are as follows:
- RKC applied to the Supreme Court for authorisation of a will on behalf of SKC;
- SKC, born 16 October 2002 (12 years old at the time of the application), was delivered by caesarean section due to foetal distress. This resulted in SKC having severe spastic quadriplegic cerebral palsy. SKC has also been diagnosed with encephalomalacia and microcephy, severe mental retardation, cortical blindness, strabismus and refractory epilepsy, precocious puberty and scoliosis;
- SKC possessed a significant estate due to a personal injuries claim on her behalf resulting in an award of damages of approximately $1.375 million. Perpetual Trustee Company Limited acted as administrator of this fund for SKC;
- SKC was supported and cared for by her mother and maternal grandmother;
- If SKC had of passed away intestate (without a will), SKC’s estate would be divided equally between her mother and father, whom did not contribute to the well being or upbringing of SKC;
- As SKC was born without capacity, there was no evidence of her testamentary wishes. The Court was satisfied in the medical evidence put forward that there was no likelihood of SKC acquiring capacity.
If SKC had have passed intestate, SKC’s father would have received a windfall from SKC’s estate. He had a poor relationship with SKC, and did not contribute to her care.
The court authorised a draft will on behalf of SKC which provided that Perpetual Trustee Company Limited be the executor of SKC’s estate, and that the estate be distributed between SKC’s mother, relatives and cousins.
There must be a lack of capacity
There is a number of matters which the court must consider before authorising a statutory will. Foremost, the Court must be satisfied that:
- there are reasonable grounds for believing that the person for whom the statutory will is for, lacks testamentary capacity; and
- the proposed will reflects the wishes of the individual if they ever did have capacity.
Making an application for a statutory will
Making an application for a statutory will requires careful consideration. It is important to ensure that you are receiving accurate advice based on your circumstances before making an application for a statutory will.
If you require assistance or advice in this area, please do not hesitate to contact me.
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