In most cases, children under 18 years of age wouldn’t even think of making a Will – they often have minimal assets and plan on being around for a long time. However, there may be situations where it is desirable for them to make a Will and there are some mechanisms in place to allow that to happen in appropriate cases.
Generally, in order to make a Will a person must be at least 18 years of age. There are limited exceptions, such as where a person under the age of 18 years is married, but it’s relatively uncommon these days for people under that age to be married. People under the age of 18 years are often referred to in the law as “minors”.
Consider this example:
A 16 year old boy Nathan suffered a significant injury as a young child and as a result he now has both physical and intellectual disabilities. Nathan received a substantial award of damages because of his injury. Nathan has been raised by his father and grandparents from the time he was a toddler, because Nathan’s mother left the family and chose to have no contact with Nathan. If Nathan were to pass away, his estate (which will be quite large as a result of the award of damages he received) would pass equally to his mother and father. This is a result that many people would consider inappropriate because of the estrangement between Nathan and his mother.
What options are there for people under the age of 18 years to make a Will?
There are two main scenarios to consider –firstly where the minor has testamentary capacity and secondly where the minor does not. According to the law, a person has testamentary capacity if they satisfy a 4 part test, which can be summarised as follows:
- The person must understand what a Will is.
- The person must have a general understanding of the nature and value of the property they own.
- The person must understand who their family members are and other people they may have an obligation to provide for.
- The person must not be suffering from a disorder of the mind or delusions which influence the terms of the Will and result in the Will being made in such a way that would not have occurred if the person had been of sound mind.
Wills for minors who have testamentary capacity
Where a minor has testamentary capacity, an application can be made to the Court seeking the Court’s authorisation for the minor to make a Will. The application to the Court can be made by the minor, or by someone on their behalf. The Court must be satisfied that the minor understands the nature and effect of the proposed Will and the extent of their property that will be disposed of by the Will. The Court must also be satisfied that the Will is in accordance with the wishes of the minor, and that it is reasonable in all in the circumstances.
If the Court decides that the Will should be authorised, then in order to make the Will valid there are certain procedures that need to be followed, including that one of the witnesses to the Will must be a Registrar of the Court.
Wills for minors who lack testamentary capacity
If the minor lacks testamentary capacity, the Court can authorise the making of a Will for the minor, although there are different matters taken into account than set out above.
There are a number of things the Court must be satisfied about before authorising the making of wills for minors who lacks testamentary capacity. For example, the Court must be satisfied that the proposed Will is one the minor likely would have made if they had testamentary capacity. How the Court approaches the issue of becoming satisfied about this depends on whether the minor once had capacity but lost capacity (for example, as a result of suffering a significant injury some years after birth) or whether they have never had capacity at any time (perhaps because of a condition the minor suffered from birth). By way of example, in the first ever decided case in NSW regarding court authorised Wills, the Judge posed the following question to demonstrate how the Court would consider a proposed Will for a minor who once had capacity, but later lost capacity:
“….given what is known about the teenager’s relationships and history, is there a fairly good chance that a reasonable person, weighing up those circumstances, would have made the proposed statutory Will?”
If the Court makes an order authorising the making of a Will, then certain procedures need to be followed. The Will is signed by a Registrar of the Court on behalf of the person lacking capacity and the Will is retained by the Court.
The information provided here applies to the law in NSW. The law with respect to Wills and Estates differs between states and territories in Australia, so if a person resides in a different state or territory and/or has assets in different states or territories then different laws may apply to their Will and Estate.
This information is of a general nature and is not intended to address the circumstances of any particular individual. If you have any queries about the information provided and its applicability to your situation, please do not hesitate to contact our Estate Planning team on 02 4929 3995 or by email to firstname.lastname@example.org.