By Teigan Hutchison
Generally, except in limited circumstances, a person under the age of 18 cannot create a valid will. However, in the modern landscape, it is becoming more prevalent for minors to acquire assets and properties, leading to situations where it may be in their best interests to safeguard these assets in the event of their untimely demise.
This article offers a succinct overview of the Succession Act 2006 (NSW) and assesses the adequacy of its current exceptions in enabling minors to draft valid wills.
What is a Will?
A will is a legal document that outlines an individual’s wishes about the distribution of their property and assets after their death.
Moreover, a will affords individuals the opportunity to articulate their preferences with regard to several matters, such as designating caretakers for their pets, outlining funeral arrangements, making charitable bequests, and distributing sentimental items like clothing, heirlooms and jewellery to specific individuals.
By creating a will, individuals can ensure that their assets are distributed according to their wishes, rather than being subject to intestacy laws that may not align with their desires.
Why are minors unable to make valid wills?
It is generally accepted that minors do not have full and unfettered legal capacity. This lack of capacity is an essential consideration when creating legal documents such as wills, and it has been determined by law that minors do not possess the necessary level of capacity to do so.
It is important to keep in mind that this is a general rule of thumb, and there may be certain exceptions or circumstances where a minor may be able to make a valid will.
So, what are the exceptions?
In certain circumstances, a minor may possess the legal competence to create a legally binding will, as specified in Section 5(2) and Part 2.2 of the Act:
- Marriage; and
- Authorisation from the Court.
Under s 5(2) of the Succession Act 2006 (NSW), minors either married or in contemplation of marriage are permitted to make, alter, or revoke a will. It should be made clear that the will is of no effect if the marriage contemplated does not take place.
The second exception involves filing a Court application under Section 5(3) of the Succession Act 2006 (NSW). The application must be initiated either by the minor or by an authorised representative on their behalf.
The Court holds the power to grant permission to the minor to create a will, and the decision to approve the application hinges on their assessment of the minor’s testamentary capacity. The Court’s assessment may take into account various factors, including but not limited to, the minor’s age, level of education, and overall decision-making and understanding.
How can the court test for testamentary capacity?
The Supreme Court of NSW applies the test for testamentary capacity that was adopted in Banks v Goodfellow (1870) LR 5 QB 546, and later revised in Carr v Homersham (2018) 97 NSWLR 328. It required a minor to:
- have the capacity to understand the nature of the act of making a will and the extent of the property disposed of by it;
- understand the extent of the property the subject of the will; and
(c) have the capacity to comprehend the moral claims of potential beneficiaries
Notably, the testator must not be suffering from a condition that interferes with his or her normal decision-making concerning the testamentary dispositions.
What happens if a Court is satisfied with a minor’s testamentary capacity?
Once the Court is satisfied with the minor’s testamentary capacity, they must further consider the following elements pursuant to s 16 of the Act before making an order:
(a) The minor must understand the nature and effect of the proposed will and its effects;
(b) The proposed will must accurately reflect the intentions of the minor; and
(c) It is reasonable in all the circumstances that the order should be made.
What are the legal requirements and practical considerations for minors to make valid wills, and how should I weigh them in determining my position?
It can be argued that expanding and/or amending the Act’s provisions may encourage and facilitate the creation of valid wills by minors, providing them with a sense of autonomy over their assets and Estate. In cases where minors may have specific wishes or preferences for their asset’s distribution or end-of-life arrangements, a will can ensure that their wishes are carried out.
There is a common misconception that minors do not require a will due to their perceived lack of assets or limited understanding of legal processes. However, it is crucial to acknowledge that life is unpredictable, and circumstances can change rapidly.
On the other hand, it may be contended that expanding legal provisions for minors to create wills may expose them to undue influence and other risks from family members, friends, or other individuals. For minors, their cognitive and emotional development may not be sufficiently advanced to meet these criteria.
In addition, minors may be susceptible to external influences that could affect their capacity to make independent decisions. Ascertaining whether or not a minor has testamentary capacity will provide unique challenges compared to adults, and the legal and practical safeguards that are available to adults may not be as effective for minors.
Overall, further evaluation is needed to assess the benefits and drawbacks of allowing minors to create wills, and to determine if it’s in their best interest.
Can we expect any changes or amendments to the Act?
At present, there appears to be limited indication or anticipation of any revisions or updates to the Succession Act 2006 (NSW) that would enable minors to create legally binding wills.
While there have been ongoing discussions in the legal field regarding the potential advantages and drawbacks of allowing minors to make wills, there has been no significant progress or consensus reached on the matter.
In summary, the current restrictions placed on a minor’s testamentary power is somewhat understandable. Since it’s not difficult to envisions situations where a minor who does possess assets and property are highly susceptible to being taken advantage of by others. Especially, if they do not fully grasp the ramifications of forming a will as a legal mechanism.
Alternatively, the other side of the spectrum would claim that restrictions in place undermines minor’s intelligence and their ability to comprehend their situation. Moreover, the making for will is generally a relatively inexpensive process. As such, why should minors have to incur the heavy costs associated with a Court application and the respective legal fees associated to simply enact their testamentary intentions.
Therefore, this aspect of modernity is one that finds minors with increasingly more assets and property than ever before and if this trend continues, there will be necessity for lawmakers to re-evaluate their position on a minor’s ability to create valid wills.
Creating a valid will can provide peace of mind for both the minor and their loved ones, ensuring that their assets and final wishes are properly documented and carried out in accordance with the law.
Foulsham & Geddes notes that this article is written for the purposes of provided generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.