Following on from our previous article “No Will” Means “No Choice” we continue this theme by looking at a recent Court Ruling.
The law provides an opportunity for family of those living, but without mental capacity (or knowledge and understanding sufficient to create their own, updated, Will) to seek a Court – Ordered Will.
Most often this occurs in a case of lost capacity or ‘nil’ capacity, (where someone is born without an ability to make these decisions) and they either have No Will, or their existing Will is inadequate to fulfill their known intentions and wishes.
Sometimes, reliance upon the intestacy rules (for those without a Will) does not suit those likely to benefit, nor correspond with the wishes of the person. Perhaps existing documents lead to a result that is actively different to the person’s wishes.
In the recent decision of Re RD (2021) QSC 65, the Queensland Supreme Court was faced with the scenario of a Court Ordered Will. A tragic motor accident 20 years ago led to serious and significant injury to a young baby. Whilst at 21 years of age he has a continuing diagnosis of lack of capacity to make his own Will, his access to compensation funds for his injury necessarily suggests a Will is advisable.
The factors relevant to the consideration of the Court, including as argued by the young man’s independent Litigation Guardian, his mother, father, and siblings included:
- What the intentions of the person are;
- How those intentions were to be determined (in the absence of capacity);
- Life expectancy of the young man and expected depletion of funds during his lifetime;
- Costs incurred by an estate if it were to create protective trusts for the family (and associated asset protection);
- Benefits of a protective trust for beneficiaries and if this aligns with the ultimate wishes of the person;
- Uncertainty as to who should control protective trusts (if they were necessary);
- Recognition of primary caregiver role of mother and disproportionate distribution of inheritance likely;
- Involving those likely to inherit, and allowing them to be heard on their views; and
- The appropriateness of the person making the application.
All these factors were weighed up, investigated, and determined with the guidance of appropriate professionals.
You can take the positive step of actively planning you Will and Legacy whilst you have the capacity to do so to avoid the difficult situation of a Court Ordered Will.
For all your Will, Legacy and Estate Planning advice please do not hesitate to contact Rouse Lawyers on 0736489900 and we would be delighted to assist you.