JOHN was born in 2000.

When John was four months old, he was admitted to hospital in a critical condition with severe head injuries.

John was placed on life support for several weeks.

The doctors believed that John’s injuries were consistent with ‘Shaken Baby Syndrome’ although John’s parents consistently denied that they had injured him and no charges were ever brought.

In 2001, John was removed from his parents and was placed into foster care as a ward of the Minister for Community Services.

In 2002, John was awarded a substantial sum from the Victim Compensation Tribunal, which was to be held on trust by the NSW Trustee and Guardian until he turned 18.

Unfortunately, as John grew older, it became clear that he would be left severely intellectually disabled, epileptic, legally blind and non-verbal.

John’s disabilities presented a real risk of premature mortality and he was not expected to live beyond his teenage years.

As John did not have the capacity to make a will, the Minister was concerned that he would die “intestate” and his parents would therefore become the sole beneficiaries of his estate.

The Minister applied to the Court to make a Statutory Will, in which John’s sister, who was two years older than John and had also been removed from their parents, would be the sole beneficiary.

If John’s sister predeceased John, his estate would pass to two charities who had cared for him.

The Court agreed with the Minister and made a Statutory Will for John, finding that it was ‘reasonably likely’ that John’s parents had caused his injuries and if John had capacity, he would not have wanted them to benefit from his estate.

This hypothetical explores a tragic yet important aspect of estate planning and considers what happens to someone’s estate, who never had testamentary capacity.

Thank you to Jamie Visco for his assistance with this column.

Email Manny Wood, Principal Solicitor of TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor