Wills for children and minors

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Statutory Wills are not to be confused with court authorised Wills for minors (Wills for children).

There is a difference between the two, under the Succession Act 1981 (Qld) “the Act”. According to the Act, the making of a Will for a minor who has testamentary capacity is different from the making of a Statutory Will for a person (whether that person be an adult or a minor) who lacks testamentary capacity.

As a general rule, minors are legally prohibited from making Wills.

There are circumstance though where the Court may decide otherwise. In that case, the Court will authorise the making of a Will by a minor where there is compelling reason for them to do so.

This is generally where the minor possesses or will possess a significant asset pool prior to their 18th birthday, and wishes to divide their estate in a manner which is not consistent with the rules of intestacy.

Wills for minors – how does it work?

A minor or a person other than the minor may make an application for court authorisation for a Will. 

Section 19 of the Act gives the court the power to make an order permitting a minor to make, alter or revoke a Will. Before this happens, the court may only make such an order if it is satisfied that:

  • The minor understands the nature and effect of the proposed Will, alteration or revocation and the extent of the property dealt with under that Will, alteration or revocation;
  • The proposed Will, alteration or revocation accurately reflects the intentions of the minor; and
  • It is reasonable in all the circumstances that such an order be made.

This is similar to statutory Wills in that the application must provide the proposed Will to the court, and the court must approve the proposed Will.

The Case

In the South Australian case of Re J (LC) [2014] SASC 20, the minor was awarded damages from a personal injury suit. The minor possessed a sum of approximately $630,000.00 at the time of the making of the application.

The minor lived with her maternal grandparents. Her mother had passed away when she was 2 years old and her relationship with her father was tainted.

The minor wished to leave a sum of $20,000.00 to her father upon her death, and the rest and residue of her estate (after the payment of funeral and testamentary expenses) to her maternal grandparents.

Under the laws of intestacy, her father would have had a majority interest in her estate if she had passed away without a Will prior to obtaining the age of 18 years.

The Decision

After considering her situation and reasons, the Court was satisfied of the minor’s understanding of the effect of the application and the terms of the proposed Will. The court authorised the making of the Will by the minor.

We look at another Queensland case of Re K [2014] QSC 94, where Atkinson J authorised the making of a Will by a minor who had suffered very serious personal injuries, which were the subject of a law suit at the time of the making of the application. It was expected that the claim would settle prior to the minor obtaining the age of 18 years for a significant award of damages (given the extent of his injuries). The minor lived with his mother, who had been his sole carer since he was released from hospital, and he had “virtually nothing to do with his father”. The minor therefore wished to leave his estate entirely to his mother should he predecease her. Were he to die intestate prior to obtaining the age of 18 years, the disposition of his estate would not have matched his testamentary wishes. Upon consideration of the evidence, the court was satisfied of the matters required by section 19 of the Act and authorised the making of a will by a minor.

For more information regarding Wills for Minors

Please contact our client engagement team to book an initial consultation with one of our Brisbane Will Dispute & Estate Litigation lawyers today.