Can a child have a Will?

In NSW a Will made by a child under the age of eighteen (18) is invalid under section 5 (1) of the Succession Act 2006 (NSW). However, subsection (2) provides that a child may:

a) make a Will in contemplation of their impending marriage (and may change or revoke any such Will), however this type of Will is not recognised or enforceable if the marriage does not eventuate.

b) a child who is married may make, change, or revoke any previous Will; and

c) a child who has been married may revoke all or any portion of a Will made while the child was married or while contemplating that marriage.

Subsection (3) provides that a Will may be created by an order from the Court under section 16 of the Succession Act 2006 (the Court can also allow a child to make, amend, or revoke a Will in subsection (1)).

Court Orders

A person under the age of eighteen (18) may create a Will under section 16 of the Succession Act 2006 (NSW), provided that the Court has been informed of the intended terms of the Will and has given specific permission for the minor to make the will. This will only apply under very specific circumstances such as if a child has accumulated assets through inheritance or a significant damages award, but the laws of intestacy would result in a grossly unfair distribution of the child's estate.

It's possible that the child has a short life expectancy, is only receiving care from one parent or foster parents, has children, or has engaged into a relationship with a defector. It should be mentioned that the court's authority in this case is to allow the creation of the will rather than to draft a suitable will for the child. According to the statutory provisions, the court must generally be satisfied with a number of requirements before granting approval. These requirements include the child's understanding of the nature and impact of the proposed will, the fact that it accurately reflects the child's intentions, and the fact that it is reasonable under all circumstances to permit the creation of the will.

In the NSW Supreme Court case of the Application of M (2000) 50 NSWLR, a 17-year-old applicant had only irregular contact with his mother and had never met his father. The child has actually been primarily cared for by his grandparents and greatly benefited from his grandmother's will upon her passing. If the applicant died his estate would be shared equally between his parents (according to the rules of intestacy). The child wanted to leave a legacy to his mother and the residue to his cousins with whom he had been raised.

Whilst acknowledging that the court should not lightly make an order, the Judge held that there were strong grounds for making an order in these circumstances. Leave was accordingly granted for making of a Will with the gifts as desired by the applicant. His Honour commented ‘the minor has substantial property and if the property passes on the under intestacy there will be undeserved windfall to the minor’s biological parents to the detriment of what it is the real family.’

If a Child Dies without a Will

In NSW the assets of a minor who passes away that is, without a valid Will are divided in accordance with the intestacy rules.

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Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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