Can a Minor Make a Will or Revoke a Will?

Date: Feb 28, 2013
Document Type: Article

A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will.

There are some exceptions.

Section 5, Succession Act – Minimum age of making a will

A minor may make or revoke will in contemplation of marriage but the will is of no effect if the marriage contemplated does not take place.

A minor who is married may make, alter or revoke a will.

A minor who has been married may revoke the whole or part of the will made while the minor was married or in contemplation of marriage.

Upon application the Court may make an Order authorising the minor to make or alter a will in the specific terms approved the Court or to revoke a will or part of a will – Section 16 Succession Act.

An Order under Section 16 may be made on the application of a minor or by a person on behalf of the minor.

Before making such an order the court must be satisfied that the minor understands the nature and effect of the proposed will or alteration or revocation and the extent of the property disposed of, that the proposed will or alteration or revocation of the will accurately reflects the intentions of the minor and in all the circumstances it is reasonable that the order be made.

A court-ordered will made pursuant to Section 16 must be deposited with the Registrar of the Supreme Court.

Application by or on behalf of a minor would usually be made in circumstances where the minor:

  • was suffering from an illness or injury that may be fatal;
  • had a sufficient estate to make application to the court worthwhile; and
  • wishes the estate to be distributed otherwise than in accordance with the intestacy rules which might only benefit the parents of the minor.

A minor may wish his or her estate to go to one parent rather than both, perhaps in circumstances where the minor is estranged from one parent or the minor may simply wish to benefit another person for example a de facto spouse, a particular sibling or a carer.

An application to the court under Section 16 might be desirable if a minor became entitled to a substantial award of damages or a substantial legacy and there was a good reason why it would not be appropriate for that money to pass to the minor’s next of kin on intestacy.

In those circumstances the case law says the court must be satisfied that the minor understands the nature of making a will and also what is in the proposed will. The court must be satisfied it is a free and voluntary disposition and not unduly influenced by the beneficiaries or those who have guardianship of the minor.

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