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Statutory Will authorised for severely disabled child

Wills and Estates: 23 March 2019

A Court may authorise a Will to be made on behalf of a person who does not have capacity to make a Will on their own, due to lack of capacity. These are commonly referred to as "statutory Wills.

The Court will authorise the Will if it is satisfied that the proposed Will accurately reflects the likely intentions of the person if he or she had testamentary capacity.

The determination of the person's likely intentions is difficult in cases where the person never had testamentary capacity, and therefore no evidence exists of their actual testamentary intentions (nil capacity cases). In these cases the Court will consider evidence from family members and various experts as to the person's relationships and family circumstances and determine what the person's likely Will would have been, had they had testamentary capacity.

The parties are able to agree on a proposed Will and seek Court authorisation of that Will, however the Court will always look at what is appropriate in the circumstances, and may make a different Will to that proposed. In other words, it is a protective jurisdiction rather than a consent jurisdiction.

In the recent South Australian case of W,DJ [2015] SASC 45, the family of DJW, a 17 year old child who had been severely disabled following birth complications, applied for a Will to be made for DJW. DJW had received the sum of $8,550,000 in settlement of personal injury proceedings.

DJW's parents had been separated for many years. He lived with his mother, who was his primary carer. The other people with whom he had regular contact were his mother's new partner, his sister E, and half sister S. 

DJW had little contact with his father since his parents separated. DJW's mother stated that his father had little or no involvement with DJW and had not been in contact with him for the last 8 years due to lack of interest on the father's part. DJW's father submitted on the contrary that he had been very involved with DJW's upbringing prior to the separation, but had not remained in regular contact due to the actions of DJW's mother and lack of appropriate facilities in his home.

Despite their differences, DJW's parents consented to an application being made for a proposed Will in the following terms:

  • The following to DJW's mother:
    • An  indexed legacy  of  $100,000.00 
    • A  gift  of  real  estate  comprising DJW's principal place of residence.  If there is no such place of residence, then a gift in lieu of an indexed amount of $400,000.00. 
    • The income from three quarters of the residuary estate throughout her life.  On her death, there is to be an equal division of that residuary estate to DJW's sister E and his half sister S on his mother's side.
    • In the event that DJW's mother predeceases him, the legacy as earlier referred to is to pass to his sister E and his half sister S. 
  • 75 per cent of the residuary estate is to pass to his sister E and his half sister S. 
  • The remaining 25 per cent of the residuary estate is to pass to DJW's father.

Upon considering the proposed Will, the Court was not satisfied that it reflected the likely intentions of DJW if he had capacity, and considered that it was not reasonable in the circumstances.

The Court found that DJW would have taken into account the fact that his mother had already received, and would continue to receive, substantial benefits from his personal injury settlement by reason of being his carer. 

Instead of authorising the proposed Will which had been agreed to by DJW's parents by consent, the Court authorised the following Will of its own accord:

  • Australian Executor Trustees Ltd appointed executor;
  • The residuary estate to be divided into 4 parts and distributed as follows:
    • 2 parts to DJW's mother, but if she does not survive then to be distributed to sister E and half sister S in equal shares upon attaining the age of 21 years;
    • o   1 part to DJW'S father, but if he does not survive then to sister AW on his father's side;
    • o   1 part to sister E and half sister S in equal shares upon attaining the age of 21 years.

This case shows that in statutory Will cases, a Court will embark on an entirely objective examination of the circumstances, and may make a Will which may be different to the one agreed to by family members. It is important to disclose to the Court all relevant facts as to the person's relationships and family circumstances. 

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