In order for a person’s Will to be a valid and binding document in Australia, that person (the Testator) must have ‘testamentary capacity’ at the time at which the Will was created.

What is testamentary capacity?

This means that the Testator must not be affected by any disorder of the mind and must understand:​

  • the nature and effect of the Will;
  • what their estate is; and
  • the claims which the Testator might have upon their estate.

For example, an individual with advanced dementia or severe mental disabilities will be unlikely to have the requisite testamentary capacity to make a valid Will.

The Court may create a Will on behalf of a person without testamentary capacity

This was the case for a 13 year old boy in New South Wales who had been left severely disabled after being deprived of oxygen at birth due to the negligence of hospital staff.

This young boy (known as “N”) required an urgent and risky operation on his lungs, and there was a high chance he would not survive the procedure.

Without the requisite testamentary capacity N was incapable of making a valid Will to provide for the distribution of his estate in the event of his death.

For most 13 year old children this would be a non-issue, for two reasons there would be nothing to distribute and, even if there was, the laws of intestacy would result in the child’s next of kin (most likely their parents) automatically inheriting the estate in equal shares upon death.

However, this matter was unique in that N’s estate was worth millions of dollars due to a settlement payment received from the hospital responsible for mishandling N’s birth and causing his disability.  Further, N’s parents were separated.  More importantly, it was argued that N’s father had left N’s mother years earlier to care for N alone.

The issue was brought before the NSW Supreme Court for Justice Robb to determine whether the Court could make a Will for N and, if so, what N’s wishes were likely to be if he was able to express them for himself.

The relevant legislation, in both New South Wales and Queensland, provides that the Court may create a Will on behalf of a person without testamentary capacity.  Justice Robb therefore had no difficulty finding that the Court had the power to make a Will for N.  Although this matter is clearly a rare case, it is also an example of the extensive powers granted to the Court under the Succession Act.

Ultimately the Court determined that N’s estate be split three ways: 42.5% to his mother, 15% to his father and the remaining 42.5% to be split equally amongst N’s six siblings.

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