Legal Tip 69: Court Made Wills

People who lack capacity cannot make wills.

In all states courts have the powers to make wills for persons without capacity. There are cases where children have applied to the courts to amend or make a will for their elderly parent who has lost capacity. One reason they would want to do this is to set up a testamentary discretionary trust so any inheritance does not go to the child directly. Some cases involve child who are being sued or potentially being sued and therefore have a high chance of going bankrupt. Some cases have granted a will but others haven’t. Similar with divorces.

Another time a court ordered will may be appropriate is disable minor children. Often these children have suffered some sort of accident and have received a large payout. Often the parents often divorce and one parent loses contact with the child. if the child were to die the intestacy rules would generally mean both parents would share the child’s estate. This may not be fair if one parent is making a huge sacrifice both financially and non financially while the other is not assisting. The court also needs to consider who would get the benefits if the parents were to predecease the child.

A recent SA case involving a child disabled at birth where the court made a will for the child:

In the Matter of Jesse Colin Corner [2015] SASC 100
http://www.courts.sa.gov.au/Judgments/Lists/Judgments/Attachments/2103/2015 SASC 100.pdf

 

There has been another case involving a court made will for an intellectually disabled 20 year old woman. She suffered brain damage at birth, and her father hasn’t had any contact with her since 2001.


If she died without a will both her mother and father would have shared her estate.


She suffered brain damage as a result of a overdose given to her in hospital just one week after her birth which led to the hospital paying her damages of $5,461,251. A professional trustee company was appointed to manage the funds for her.


The mother brought the application to the court because it wouldn’t be fair that the father potentially inherit half considering he has not seen the girl in over 15 years or taken care of her.


Re K, JL [2016] SASC 53

http://www.courts.sa.gov.au/Judgments/Lists/Judgments/Attachments/2606/2016 SASC 53.pdf

 

A Limited v J [2017] NSWSC 736
Supreme Court of New South Wales
https://www.caselaw.nsw.gov.au/decision/593794b5e4b058596cba761b

Disabled child about to undergo surgery carrying the risk of death. Court authorised will to be made.

 

A Limited v J [2017] NSWSC 736
Supreme Court of New South Wales
https://www.caselaw.nsw.gov.au/decision/593794b5e4b058596cba761b

Disabled child about to undergo surgery carrying the risk of death. Court authorised will to be made.