Published in the Coffs Coast Advocate on 26 July 2014.
Katie is in her 30s. She suffers from a number of serious mental and physical disabilities. Since birth, Katie has been cared for by her aunt, Mary. Katie’s biological parents have been absent for most of her life.
Several years ago, Katie’s grandmother left her a substantial inheritance to assist her in dealing with her disabilities. The funds have been held by the New South Wales Trustee and Guardian and some of the funds have been released to pay for medical costs and modifications to Mary’s home to assist Katie in managing her disabilities.
Katie has never married and has no children. She has three siblings and her biological parents are still alive. Katie’s disabilities mean that her life expectancy is relatively short.
Although Katie’s disabilities would prevent her from making a will, she has expressed concerns to Mary regarding how her trust fund will be dealt with upon her death.
Mary makes an appointment with her Coffs Harbour solicitor in order to obtain advice regarding Katie’s concerns.
The solicitor advises Mary that without a will, Katie’s estate, including the substantial trust fund, will go to Katie’s parents equally according to the rules of “intestacy”. The solicitor confirms that Katie does not have the capacity to make a will, leaving her estate to her preferred beneficiaries.
The solicitor informs Mary that the Supreme Court has the ability to make a “statutory will” that would prevent Katie’s estate going to her parents.
With the assistance of her solicitor, Mary applies to the court, seeking an order that a will is made to the effect that Mary and Katie’s three siblings each receive a quarter of Katie’s estate.
The court decides that it is likely that if Katie had capacity, she would make substantial provision for Mary. The court also considered Katie’s limited relationship with her siblings.
The court ultimately decides to make a “statutory will” for Katie. Mary is pleasantly surprised when she discovers that “given the sacrifices she has made” for Katie, the court makes a will giving her 55% of Katie’s estate and 15% to each of Katie’s siblings.
