It may be an all too common complaint of children, particularly teenagers, that the rules of the world aren’t always fair. When it comes to estate planning documents, minors are treated differently in several ways to adults so they may have a point.
Section 5 of the Succession Act 2006 (NSW) dictates the minimum age for making a will, and that a will made by a minor child under the age of 18 years will not be valid, except for a few special circumstances. These include:-
- If the will is in contemplation of marriage, though the will is of no effect if the marriage contemplated does not take place; or
- If the minor is already married.
If the minor has been married, they may revoke their will in part or whole.
Under section 16 of the Act the Court may authorise a minor to make, alter or revoke a will of the Court must be satisfied that—
- the minor understands the nature and effect of the proposed will or alteration, or revocation of the will or part of the will and the extent of the property disposed of by it; and
- the proposed will or alteration or revocation of the will or part of the will accurately reflects the intentions of the minor, and
- it is reasonable in all the circumstances that the order should be made.
Probate and Letters of Administration for a Deceased Estate
Section 70 of the Probate and Administration Act 1898 (NSW) excludes a minor child from acting as the executor of a will.
Where a minor is sole executor, administration with the will annexed may be granted to–
- a guardian of the person or of the estate of the minor, or
- such other person as the Court thinks fit,
until the minor attains the age of eighteen years, with full or limited powers to act in the premises until probate is granted to the executor or administration is granted to some other person.
Section 63 of the Act also specifically excludes minors from being appointed as the administrators of an estate where the deceased passed away without a will.
Minor children entitled to the estate of a person who passed away without a will have their entitlement protected via the Supreme Court of NSW’s Protocol for Minors, either by the Court requiring an administration bond (unless the guardian of the child is eligible to consent to dispense with the bond), or if a bond cannot be secured, by having the funds held by the NSW Trustee and Guardian. The guardian can seek that the NSW Trustee and Guardian advance funds to the minor beneficiary for the minor’s benefit.
Claim for Further Provision
An application for further provision from a deceased estate may be made by a tutor (within the meaning of the Civil Procedure Act 2005 (NSW) for an eligible person who is under legal incapacity, which includes a child under the age of 18 years.
Power of Attorney and Enduring Guardianship
The Powers of Attorney Regulation 2016 (NSW) states that an attorney must be over the age of 18 years.
Section 6 of the Guardianship Act 1987 (NSW) allows a person to appoint an enduring guardian, provided that the person making the appointment is of or above the age of 18 years.
Section 6B of the Act also confirms that a person is not eligible to be appointed as an enduring guardian unless he or she is of or above the age of 18 years.
It would appear that the kids may have a fair point that they are treated differently in these cases, for better or worse.
For assistance with estate planning and estate administration, involving children or otherwise, contact Baker Love Lawyers.