It may seem somewhat ridiculous to you that a person under the age of 18 years of age would need a will. Most children do not usually have any large assets such as a house, term deposits or much in the way of superannuation. But there are certain situations that may arise where a minor owns substantial assets. For example, the minor may have received a large payout from a personal injury matter or receive an inheritance from a trust created in a will.

This means that a minor may need a will to protect these assets. But, to make a will a person must reach at least 18 years of age in NSW. This leads itself into problems in these situations. But, lucky enough for you there are certain provisions of the Succession Act 2006 (NSW) which can help.

Under Section 16 of the Succession Act 2006 (NSW) the Court may authorise a minor to make, alter or revoke a will. This means that an application is made to the NSW Supreme Court seeking the ability for a minor to make a will. What is interesting is that this application to the Court is able to be made by both a minor or by someone acting on their behalf.

To do this though, the Court must be satisfied that the minor understands the nature and effect of the proposed will. They also need to understand how the property they own will be disposed of through the will. This means that the minor will usually be of an age closer to 18 whereby they understand the contents of the document. The Court must be reassured that the will is in accordance with the wishes of the minor and most importantly it is reasonable in the circumstances.

However even further issues can arise in situations where the minor either is too young to understand the contents of the will or does not have capacity due to a disability. Whilst this can still be done, the NSW Supreme Court must be satisfied that the proposed will is one the minor likely would have made if they had testamentary capacity.

Due to this, if you are faced with a situation similar to this you should consider legal advice. At Adams & Partners Lawyers we are able to help all clients throughout NSW (although in particular in the Penrith, Parramatta and Hawkesbury areas).

Written by Cameron Spanner.

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