Hypothetical by Manny Wood published in the Coffs Coast Advocate on 23 May 2020.
Amelia suffered brain damage at birth causing severe cognitive impairment and severe communication impairment.
Amelia’s parents separated two years after her birth. They have since remarried and both have had two more children.
Amelia’s mother, Carol was her primary carer during her childhood. Both of Carol’s children to her new partner have a loving relationship with Amelia.
When she turned 18, Amelia moved into a group home which specifically caters for her needs. Carol and her other children frequently visit Amelia and they stay home when Amelia comes to visit at Carol’s house.
Amelia’s father has little to do with her.
Carol was recently successful in obtaining a $3 million award for damages against the hospital due to professional negligence involved in Amelia’s birth. The funds are held on trust for Amelia’s benefit by the Perpetual Trustee.
Carol makes an application to the Supreme Court, asking the Court to make a Will on Amelia’s behalf, leaving her 60% of Amelia’s estate, Amelia’s father 5% and the balance to be shared between Amelia’s half-blood siblings.
A “Statutory Will” can be made by the Court on behalf of a person if they do not have the capacity to make a Will themselves.
The Court hears that Amelia is functioning at a 2 to 3 year old level and ultimately accepts that Amelia does not have the capacity to make a Will, nor is it likely that she will ever possess the requisite capacity.
The Court grants Carol’s application on the basis that it is “reasonably likely” that Amelia would make a Will in the proposed terms if she had capacity.
The costs of the application are paid out of Amelia’s trust fund.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
