Statutory Will – Pre-empted capacity

A is fourteen years old and lacks testamentary capacity. He was born with a rare congenital brain malformation treatment for which is the insertion of a cerebral shunt to drain fluid from the brain. At around two years’ of age, there was a malfunction with the shunt which led to A suffering a severe brain injury.

As a result of a medical negligence claim A was awarded substantial compensation; the value of A’s trust fund was $3,711,912.54 in September 2019. The trust includes a residential property (“the Property”) valued at $526,000, which was purchased in early 2011 in A’s name with the approval of the trustee for the purpose of being modified to meet his special needs.

A’s father OR had been violent and abusive towards A’s mother (on one occasion in the front of A, causing him stress); had been found guilty of crimes and sentenced to imprisonment.

OR had moved into the property preventing it being used as a home for A, notwithstanding that it had been modified to accommodate A’s special needs. Consequently, A’s mother and her children were required to continue to live in inappropriate public housing, which often caused A distress.

A has two siblings, a nine-year-old and an 8-year-old brother. A’s mother died on 3 May 2019 as a consequence of metastatic oesophageal cancer. Consequently, OR is A’s only surviving parent.

On 26 July 2019, the Children’s Court of New South Wales made orders that all aspects of parental responsibility for A and his two siblings are allocated to the Minister for Communities and Justice until further order.

The Secretary of the Minister’s Department made an urgent application for a ‘statutory will’ for A due to the deterioration in his health proposing that A’s siblings be named as his sole beneficiaries, excluding OR who would inherit if A died intestate.

To make an order under s18 of the Succession Act the Court must be satisfied that:

(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and

(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and

(c) it is or may be appropriate for the order to be made, and

(d) the applicant for leave is an appropriate person to make the application, and

(e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

The Secretary relied upon an affidavit made by A’s mother in December 2018, in Family Court proceedings in support of an application for a parenting order designed to ensure that, after her impending death, the three children were cared for by someone other than OR.

In an affidavit A’s mother deposed that she had always been the carer for A and the other two children, that OR never supported A, and had indicated to her that if she could no longer care for A, OR would place A in respite care.

Due to its urgent nature OR was not notified of the application and was not served; as a consequence, he was not given ‘an opportunity to appear’

If the Court had refused to deal with the application and AR had died before OR could be found and given proper notice of the application, the opportunity for the Court to apply this beneficial legislation would have been lost.

The Court was satisfied that (had he been capable of considering the matter) A would have wanted to bestow a substantial testamentary benefit on his siblings, even though it is less clear that he would have excluded his father completely.

Despite these misgivings, the Court made the orders sought; observing that due to the urgency OR was absent from the hearing, and may have a right to apply for an order setting aside or varying the orders that have been made.

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