A recent case in the New South Wales Supreme Court highlights the importance of estate planning no matter the age of the person concerned.
The court heard a case about a 12-year-old girl who lacked testamentary capacity and was near death. The plaintiff in the case - the Secretary for the Department of Family and Community Services - sought an order that a will be made on behalf of the girl.
The defendants were the mother of the child and the man identified as her father on the birth certificate. The man claimed this was incorrect and disclaimed any interest in the proceedings or their outcome. The mother did not oppose a will being made on behalf of her daughter. However, she did oppose any will that excluded her from more than half of her daughter's estate should the daughter die intestate.
The 12-year old child central to the case was born with a severe disability and was dependent on carers to carry out daily activities. She had been in foster care since January 2010 and the foster parents took on the responsibility of meeting her daily needs, such as those concerning education and health.
Following an assault in 2009 the girl received $50,000 in compensation under the Victims Support and Rehabilitation Act 1996 NSW. The money was to be held for her in a trust by the NSW Trustee and Guardian until she came of age.
The Supreme Court's order was made under section 18 of the Succession Act 2006 NSW. The order authorised a will to be drawn up for the minor concerned in the case. The NSW Trustee and Guardian was named as the executor of the will, and the estate was to be divided equally between the biological mother of the child and the foster parents once any necessary expenses had been paid.
What is testamentary capacity?
According to the New South Wales Law Society, testamentary capacity is the ability of a person to understand the nature of the act concerned and its consequent effects, the property they are disposing of and be of sound mind. In this case, the minor did not have the ability to make these decisions regarding a will.