Application of M

[2000] NSWSC 1239

Reported Decision: 50 NSWLR 401

New South Wales

Supreme Court

CITATION:	Application of M [2000] NSWSC 1239
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 116869/2000
HEARING DATE(S):	11/12/2000
JUDGMENT DATE:	11 December 2000
PARTIES :	As the plaintiff is a minor his name has been suppressed
JUDGMENT OF:	Young J

COUNSEL :	R Neal (S) of Teece Hodgson & Ward (as Sydney agents) (P)
SOLICITORS:	Robson & Oliver (Sawtell)(P)
CATCHWORDS:	SUCCESSION [1]- Will- Capacity- Minor- When Court should authorise minor's will.
LEGISLATION CITED:	Wills Probate & Administration Act 1898, ss 6, 6A, 6B
DECISION:	Order made.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

MONDAY 11 DECEMBER 2000

116869/00 - APPLICATION OF M

JUDGMENT

1    HIS HONOUR: This is an application under s 6A of the Wills Probate and Administration Act 1898 (the “Act”) for the plaintiff, who is currently aged seventeen, to make a will.

2    The plaintiff has had, in one sense, an unfortunate childhood but fortunately for him his carers for most of his life, his grandparents and latterly his aunt, have given him loving care and attention. However, he has never known his father and has only had a very intermittent contact with his mother.

3    The plaintiff benefited under the will of his grandmother and at the present time has considerable assets. Essentially, he has a farm property at Brounstone, a home unit at Sawtell and about $9000 in the bank.

4    At present, should the plaintiff die that property would pass to his parents. This is not what the plaintiff wants and, indeed, it would be incongruous in view of the lack of connection between the plaintiff and his parents.

5    The plaintiff has had legal advice. He understands what a will is and has decided that if he had testamentary capacity he would leave a legacy to his mother and give the residue of his estate to his cousins with whom he has been raised.

6    The question is, what are the guidelines that a court should observe when considering whether to make an order for a minor to have leave to make a will?

7    The general policy of the law is that a minor's will is not valid unless the minor is or has been married, or s 6A or s 6B of the Act applies (see s 6 of the Act).

8 There have been two instances in the past, so far as records of the Probate Office disclose, where orders have been made under s 6A, though neither is reported. One is noted in an article by Powell J in (1993) 67 ALJ 25 at 27.

9    It is to be noted that a minor who is married may make a will. Thus, the test that must be applied to a minor who is unmarried cannot be very high because a married minor may make a will without supervision. Thus there is no public policy reason why an unmarried minor may not also make a will if he or she is fully aware of what the consequences of making a will are.

10    Accordingly, there must be evidence as to what is the understanding of the minor involved. The Court must be satisfied that the minor understands the nature of making a will and also that what is in the proposed will (under s 6A the terms of the will must be disclosed to the Court) is a free and voluntary disposition and not, on the evidence before the Court, unduly influenced by the beneficiaries or those who have guardianship of the minor.

11    The Court should not lightly make an order under s 6A. There should ordinarily be a reason put forward as to why a particular minor should make a will. This point will not often arise as, ordinarily, people do not spend money on an application to the Court unless there is a good reason for doing so. There may be some situations where the Court will make an order under s 6A where there is no particular reason for doing so, but that will be a rarity. In the case referred to in the Australian Law Journal, some grounds were shown for making an order. In the present case there are also grounds for making an order. The minor has substantial property and if the property passes under intestacy, there will be an undeserved windfall to the minor's biological parents to the detriment of what is his real family.

12    Accordingly, the present case is a proper case for granting leave to the plaintiff to make a will in terms of the document which has been placed before the Court in evidence and I so order.

*****************

Last Modified: 12/21/2000