Court Made Wills (also known as Statutory Wills) is a fairly new and novel area of the wills and estates legal practice space. The existence of this area can be an incredibly beneficial option available to those that suffer a disability and therefore don’t have the requisite mental and legal capacity to make their own will. The law allows a family member to apply to the Court to permit the Court to make a will for that person in this situation. As you can probably imagine it has a clear formula as to whether the Court could and should make such a will and it has to be one that the disabled person would make themselves if they had the capacity to do so.
In the latest case of JW v John Siganto As the Litigation Guardian for AW & CW, the testator is 30 years old and was severally disabled in a car accident 10 years earlier. The testator’s parents have been his primary carers since his accident and also care for and have custody of his two minor children, AW (13 years old) & CW (10 years). The relationship between the testator and the children’s’ mother had broken down shortly after the accident and she no long has custody of the children.
The Court heard the application by the father to make a will for his son on the basis that the estate to set up two trusts for his son’s minor children to hold their interests in a testamentary trust until they reached the age of 25 years. The primary reason for doing so was that the estate was now quite substantial in value after a favourable outcome from litigation resulting from his son’s accident. In addition to this main benefit, the will was also to benefit the applicant and his wife (his son’s primary carers for the past 10 years) and the testator’s sister who had also shown alot of support to the family since the testator’s accident.
Under the rules of intestacy, his children would receive the whole of the estate in equal shares at the age of 18 years. The applicant’s argument was that such trusts being set up would ensure that the children would benefit from having guidance on how to manage such a large sum of money until they reached the age of 25 years. The estate was estimated to be approximately $9 million. The establishment of the trusts also provided taxation benefits for the children.
The court, being satisfied that the application met all the requirements and it being a will that the testator would make himself if able, allowed the application and proposed will.
You can read the full case here.read more