There have been two recent cases in Queensland for a court ordered will for a disabled child.

Both have very similar facts.

Facts

In one case the father had left the home when the child was 19 (the child having been permanently injured for 5 of those years) and the other, when the child was only 7.

Both mothers, who were the applicants, had always been the primary care givers and continued to be so.  

Both children had received substantial payouts from personal injuries claims. Those funds were being managed by an independent administrator.  

On intestacy both parents would share equally in the estate.  

Decisions of the Court

In both instances the Court found that a will leaving 10% of the residue of the estate (excluding the principal place of residence) to the estranged father was, in terms of section 24 of the Succession Act, a will "that is or may be a will" that the child would have made if possessed of testamentary capacity. The father was not excluded from the will entirely but 10% of the estate was considered proper provision for the father who during the first few years did assist in care of the disabled child.  

The principal place of residence in each case was left to the applicant mothers together with a large portion of the residue, in one case the applicant mother received 80% of the residuary estate and in the other case 60% of the residuary estate. The remainder of the residue went to the siblings of the disabled child. Clearly the applicant mothers were favoured over the father and the disabled child's siblings.  

In both cases the applicant mothers were provided with security of accommodation in the form of the principal place of residence.  

It is also notable that one of the applications was opposed by the child's father, who contended that he should be entitled to 30% of the residue of the estate. He also submitted that his share if he predeceased the disabled child should go to the children of his new marriage. He failed on both counts.  

Costs

Both applicants received their costs from the disabled child's trust fund on an indemnity basis.

Conclusion

The ability to seek a court ordered will is relatively new in Queensland. Many people in the applicants’ circumstances may not be aware of their ability to apply to court for a will to be made for a person without testamentary capacity (which includes minors or disabled persons).

If you have clients who do not possess testamentary capacity where one or both of the parents has become estranged from them, then you might consider bringing to the attention of the remaining parent or guardian the possibility of applying to the court for a court ordered will.  

If there is no will in place, then the intellectually disabled person’s estate will be shared equally between his/her parents under the rules of intestacy. Worse still if the parent who has assumed responsibility for the disabled person dies first, then the estranged parent stands to inherit 100% of the estate.