For a will to be valid and binding in Australia, the testator (the person making the Will) must have testamentary capacity at the time the Will was created.
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To provide a practical example any individual with advanced dementia, amnesia or severe mental disability will unlikely have the requisite level of testamentary capacity to make a valid Will. This was the case for a 13-year-old NSW boy who was disabled after being deprived of oxygen at birth.
Background of Testamentary Capacity
In the situation mentioned above, the young boy (known as “N”) required emergency surgery on his lungs with a high chance he would not survive the procedure. N did not have the testamentary capacity to make a valid will to provide for the distribution of his estate. For a regular 13-year-old child this would be a non-issue, as an individual of that age has usually not accumulated anything to distribute.
However, N’s estate was worth millions of dollars as a result of an inheritance received from a previous next of kin death. Furthermore, as N’s parents were separated, it was unsure whether the Father or Mother would receive the estate. The issue was brought before the NSW Supreme Court to determine whether a Will could be made on N’s behalf, and if so, what this Will would involve.
The relevant legislation outlined in both New South Wales and Queensland provides the Court with the ability to create a Will on behalf of a person who does not have testamentary capacity. Therefore, the Court was able to make a Will on behalf of N.
Ultimately, the Court determined N’s estate should be split three ways, with 42.5% going to the Mother (having cared for the child alone for many years), 15% to the father and the remaining 42.5% to be split equally amongst the fellow siblings. Although this is categorically a “rare” case, it is a perfect example of the extensive powers granted to the Court under the Succession Act.
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