The Supreme Court of Queensland recently handed down a decision in which a statutory will was made for a 12-year-old girl.
What is a statutory will?
Section 21 of Succession Act (Qld) gives the court discretion to authorise a will to be made, altered or revoked for a person without testamentary capacity. Such a will is called a statutory will.
What is testamentary capacity?
In order to make a will, in addition to being over the age of 18, a person must have testamentary capacity, or:
- have sound mind, memory and understanding
- full knowledge and approval of what is in the will
- not be subject to undue influence
In 2014, the mother (RC) of a severely disabled girl (SC) applied to the court to have a statutory will made on behalf of SC, who was 12 years old at the time.
SC was born by caesarean section due to foetal distress and suffers from severe spastic quadriplegic cerebral palsy resulting from the birth. She has also been diagnosed with mental retardation and other debilitating conditions.
A personal injuries lawsuit for medical negligence was brought on SC’s behalf by her mother and damages of $1.375 million were awarded. SC had lived with her mother and maternal grandmother, both of whom had been her primary caregivers but had a poor relationship with her father, JS.
With SC now in possession of a large estate due to the damages award, her mother petitioned the court to make a will on behalf of SC. SC cannot make a will because she is a minor and lacks testamentary capacity. However, if she were to die without a will, intestacy laws would allow her estate to divided equally between her mother, RC and her father, JS. Because her father had not cared for her or contributed financially for her care, the court was asked to make a will that recognised the girl’s mother and grandmother as the beneficiaries of her estate.
The Supreme Court approved the request and authorised the will to be made on behalf of SC.
Requests for statutory wills are becoming more common as our population ages and cases of dementia become more prevalent. However it is a complex area of the law which requires specialist legal advice. If you have any questions regarding testamentary capacity or anything to do with wills, please give us a call.