Wills for minors or the impaired – Statutory Wills

By Kerin Cotchett

In order to make a Will, a person must have “testamentary capacity” – that is, they must be of sound mind, memory and understanding and they must be over the age of eighteen years.

A person intending to make a Will should:

Understand the nature and effect of a Will;
Understand the nature and extent of their property;
Comprehend and appreciate the claims to which they ought to give effect;
Not be suffering from any mental disorder or delusion that would result in them making an unwanted disposition.

According to this test, a person who is, for example, in a coma or suffering from dementia, is unable to create or amend their Will. Without a valid Will, that person’s property will be distributed according to a predetermined court formula with no regard for that person’s wishes. Property may even be claimed by the State or Territory as “bona vacantia” (property owned by no-one).

If you know someone in such circumstances, you are able to make an application to the Supreme Court of your State or Territory for a Court Ordered Will or “Statutory Will”. Special leave must be sought from the Court to make such an application. The Court must also be satisfied that the Will being proposed is one that the person would have made if he or she had testamentary capacity.

Generally, the Court will only consider such applications in special circumstances. Examples of situations where the Courts have approved Statutory Wills in the past include:

Re “Charles” [2009] NSWSC 530. A New South Wales case involving an 11 year old child who had suffered severe and permanent brain injury as a result of physical abuse from his parents. The child received victim’s compensation of $50,000.00 as a result of these injuries. The NSW Supreme Court approved an application made by the Minister for Community Services for a new Will on behalf of “Charles” to avoid this money being inherited by his parents following his death.
De Gois v Korp [2005] VSC 326. A Victorian case in which the Court approved a new Will on behalf of Mrs Korp. Mrs Korp had been assaulted by her husband, resulting in severe brain damage. A Will was approved removing Mrs Korp’s husband as executor and beneficiary of her estate.
Re DH: Application by JE and SM [2011] ATSC 69. An Australian Capital Territory case concerning Mr DH, who had suffered a heart attack many years prior and suffered permanent brain damage. At the time of the heart attack, Mr DH was in a relationship with a woman who, along with her daughter, acted as his carer for the next twelve years. In light of evidence that Mr DH had no living relatives who would otherwise be entitled to the estate, a new Will was approved leaving Mr DH’s estate to his carer and her daughter.