Court-made will to protect assets from passing to children until 25 years.
Being a fairly new and novel area of the succession practice space, I’m always curious and therefore read the cases that hit my news feed on court-made wills and the reason behind them.
The legislation sets out a clear formula for determining whether it is necessary for such a will and each case is decided on its facts and circumstances.
In the latest case of JW v John Siganto As the Litigation Guardian for AW & CW, the testator is 30 years old and was severally disabled in a car accident 10 years earlier. The testator’s parents have been his primary carers since his accident and also care for and have custody of his two minor children, AW (13 years old) & CW (10 years). The relationship between the testator and the children’s’ mother had broken down shortly after the accident and she no long has custody of the children.
The Court heard the application by the father to make a will for his son on the basis that the estate to set up two trusts for his son’s minor children to hold their interests in a testamentary trust until they reached the age of 25 years. The primary reason for doing so was that the estate was now quite substantial in value after a favourable outcome from litigation resulting from his son’s accident. In addition to this main benefit, the will was also to benefit the applicant and his wife (his son’s primary carers for the past 10 years) and the testator’s sister who had also shown alot of support to the family since the testator’s accident.
Under the rules of intestacy, his children would receive the whole of the estate in equal shares at the age of 18 years. The applicant’s argument was that such trusts being set up would ensure that the children would benefit from having guidance on how to manage such a large sum of money until they reached the age of 25 years. The estate was estimated to be approximately $9 million. The establishment of the trusts also provided taxation benefits for the children.
The court, being satisfied that the application met all the requirements and it being a will that the testator would make himself if able, allowed the application and proposed will.
You can read the full case here.
As a side note, the case reminded me of the well-known case of Re Matsis (Charalambous v Charalambous & Ors  QSC 349, where the court permitted a statutory will be made for estate planning purposes. You can read Re Matsis here.