Brian Hor, Principal, WillWorks®
Jennifer Maher, Special Counsel, Kliger Partners (Vic)
Caite Brewer, Callinan Chambers, Barrister and Angela Cornford-Scott, Director, Cornford-Scott Lawyers (Qld)
Morgan Solomon, Director Solomon Hollett Lawyers (WA)
Rosemary Caruso, Consultant, Tindall Gask Bentley Lawyers (SA)
Maria Dwyer and Christine Schokman, Senior Associates, Ogilvie Jennings Lawyers (Tas)
Andrew Freer, Director and Erin Bedford, Associate, KJB Law (ACT)
Introduction
If the client does not have testamentary capacity, in certain circumstances a will can be made for them with the authority of the court.
Similarly, there are circumstances in which the court can authorise wills made by, or on behalf of, a minor (except in Western Australia where a minor cannot make a valid will).
Court has power to authorise a will to be made
The court is specifically empowered to make an order authorising a will to be made, in specific terms approved by the court, on behalf of a person who lacks testamentary capacity (including a person who is a minor).
The guidance note explains the application procedure necessary for such an order.
See Court authorised wills.
Wills for minors
A minor cannot make a valid will, except:
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where the minor makes a will in contemplation of marriage, and the marriage contemplated actually takes place; or
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where the minor is already married; or
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if the minor is in Western Australia (WA).
However, there may also be other circumstances in which a minor might wish to make a will (or it may be appropriate for a will to be made for a minor), even if they are not married (or to be married).
See Wills for minors.