When there is a way, there is a Will

Posted on July 27th, 2017

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The Supreme Court has power to order a Will to be made (“statutory wills”).  It is not a power used lightly but can be extremely useful.

In A Ltd v J (No 2) [2017] NSWSC 896 a 14 year old child had sustained injury and received $8 million in compensation.  She suffered from life threatening symptoms and there was a fear she might die at any time.  She clearly lacked capacity to write a Will. The child’s mother made application for a Will to be made for her.  The Will suggested by the mother gave much more of the estate to the mother than the child’s father.

The Judge considered what a reasonable person in the child’s position would have done if they had capacity to write a Will.  The Judge held that the child would have made greater provision for her mother.  The compensation had been largely invested in a superannuation fund managed by Trustees.  This meant that if the child died the funds might not be paid into the child’s estate and the Will could be largely irrelevant.

The Judge ordered that in the Will, the Trustees named be directed to adjust the shares of the estate after any superannuation distributions had been made.  The intention was that as nearly as possible each family member received their share not only of the assets in the Will but of the total value of the superannuation benefits.

Felicity Wardhaugh, Special Counsel at Mullane & Lindsay Solicitors, NewcastleFelicity Wardhaugh is Special Counsel at Mullane & Lindsay Solicitors and practises extensively in  Wills and estate planning, Commercial dispute resolution and other litigation.  If you require any assistance in these areas please contact Felicity Wardhaugh to arrange a consultation or contact our Newcastle office. 

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