As well as being “of sound mind” or having testamentary capacity to make a Will, a will-maker (also known as a “testator”) must also be an adult. That means your teenager’s threat of disinheritance scribbled on a napkin will not be legally binding – phew! But what if you do want to make a Will for a young person?
In special circumstances, a person under the age of eighteen years may be permitted to make a legally enforceable Will. For example, the child may have inherited a large sum of money from a relative, or, the child may have received a personal injury payment.
Legally, the only way to make a Will for a person under the age of eighteen years is to make an application to the Supreme Court under the Succession Act 2006 (NSW).[1] The requirements for making an application to the Supreme Court for a minor Will include:-
- The will-maker must be under 18 years of age and represented by a legal guardian;
- The minor will-maker must understand the nature and effect of the proposed Will;
- There must be reasonable circumstances that would permit the Court to make an order allowing the minor to make a Will, such as:
(a) It would not be appropriate, if the minor was to die without a Will, for their estate to be distributed to those entitled under the usual intestacy laws (e.g. where there is no Will the estate will go to the spouse or children of the deceased first, then to the parents, then siblings, then grandparents, then other relatives); or
(b) There are no living relatives.
- Those parties affected by the application must be served with notice of the application (i.e. anyone excluded in the minor will-maker’s proposed Will who would be entitled to the minor’s estate under the intestacy rules must be made aware of the application)
It is also possible for the ACT and NSW Supreme Courts to permit a Will to be made for a minor who does not have testamentary capacity.[2]
If you believe you or a young person under your care requires a Will, elringtons, with its team of dedicated lawyers, is here to assist. Please contact one of our friendly solicitors on 02 6206 1300 or info@elringtons.com.au to discuss at your convenience.
[1] Section 16 Succession Act 2006 (NSW)
[2] Section 16A Wills Act 1968 (ACT) and Section 18 Succession Act 2006 (NSW)
