Wills can be made upon application to the Court for persons suffering mental and physical disabilities. People lacking mental capacity may receive large sums of money or compensation following Court proceedings and may require a will.

In a recent case,[1] an urgent application was made to the Supreme Court of NSW for a will to be made for a 13-year-old child who was significantly mentally and physically disabled.

The child was scheduled for risky surgery the following day, where there was a real risk that he might die.

The child’s disabilities were caused during his birth when his brain was deprived of oxygen. Proceedings had been commenced against the owner of the hospital, which resulted in the child receiving millions of dollars. Some of these funds were managed by a trustee company on behalf of the child.

The trustee company managed approximately $3.2 million of the child’s estate, $1.5 million of which consisted of a house in which he, his mother and some of his siblings lived. Funds had also been invested in superannuation, but it had not been determined to whom or how these funds would be paid in the event of the child’s death.

The trustee company made an application to the Court asking for a will to be made for the child. If the child died without a will, all of his estate would be shared equally between the parents, in accordance with law.

The will put forward by the trustee company left the house and some other property solely to the mother, and then after payment of expenses, for half the balance to be given to the mother and the other half to be shared equally between the child’s six siblings.

The mother gave evidence that the father had taken no interest in the child’s life and had left the mother with full responsibility for his care.

The father was only notified of the application the day before the Court hearing. The Court expressed to the parties the difficulty involved in the Court authorising the making of a will that excluded the father, particularly where had been given almost no proper opportunity to put forward his case.

The parties adjourned and discussed a new draft will, which included the father, but they could not agree on the amounts. The Court decided that the mother should still receive the house, and that the father should receive 15 per cent of the balance remaining, the mother 42.5 per cent and the siblings to share equally the remaining 42.5 per cent.

This is just one example of where a will was sought for a person who lacked the mental ability (or testamentary capacity) to make their own will. Often the laws that specify what would occur if a person died without a will are not the likely intentions of the will-maker (or testator), and so it is important a will be prepared for them through the Court.

Turn to Turner Freeman

We can assist you with preparing wills for a person who is disabled or has lost mental capacity through injury, illness, ageing or otherwise. We understand these applications are often urgent and very stressful, so can provide you with the thorough and prompt advice that you need.

[1] A Limited v J [2017] NSWSC 736