Court-made Will considerations

LUCAS is involved in a serious car accident at three years of age.

He suffers a severe brain injury which significantly affects his cognitive development.

Lucas is placed under the care of the Department of Child Safety.

His mother is not involved in his daily care amid accusations of neglect and drug use.

His father passes-away a few years later.

Lucas spends several years living with his grandmother and his sister before moving into care. He remains close to his grandmother and sister, who visit him frequently.

As a result of the car accident, Lucas is awarded $10 million in compensation.

The NSW Trustee and Guardian is appointed as his financial manager.

Lucas does not have a will and in the circumstances, if he passed-away while his mother was alive, she would receive the whole of his substantial estate.

The Secretary of the Department of Communities and Justice makes an application to the Supreme Court, seeking orders approving the making of a will on Lucas’ behalf.

The Court accepts that the medical evidence put before the Court demonstrates that Lucas suffers from an intellectual disability that prevents him from making a will.

Nonetheless, the Court hears evidence that Lucas wants his grandmother and his sister “in his will” and that he was “unsure” about his mother.

The Secretary submits to the Court that it would be inappropriate for Lucas’ mother to be the sole beneficiary of his estate and proposes a will which only leaves ten percent to her.

It is also proposed that in the unlikely event that Lucas has a spouse at the time of his death, they receive 25 percent and his children 25 percent, if he has any.

The remaining terms of the proposed will leave the rest of Lucas’ estate to his grandmother and sister and includes a provision stating that if any of the shares do not take effect, the other shares increase proportionally.

Lucas’ mother does not appear at the hearing and the proposed orders are made.

Email Manny Wood at manny@tblaw.net.au or call him on (02) 66 487 487.

 

By Manny WOOD, Solicitor