20 April 2015

Court Agrees to Make Statutory Will but Disagrees on Terms

Charlie Young
Charlie Young Litigation Lawyer

In the decision of Re W, DJ [2015] SASC 45, the Supreme Court of South Australia agreed that a Statutory Will should be made for DJW but refused to make it in the terms proposed by and agreed between his parents.

DJW is 17 years of age and lacks testamentary capacity due to injuries and conditions arising from his birth. In 2012, DJW received over $8,000,000 in compensation arising from the circumstances of his birth and subsequently, an application was brought on his behalf for a Statutory Will to be made.

DJW’s parents separated in 2005. Since that time, he has resided with his mother (who is his full-time carer) his younger sister, E, and his younger half-sister, S.

DJW’s mother’s evidence was that his father had little involvement with DJW before they separated and that since 2005, he had only spent five hours with DJW.

DJW’s father disputed the mother’s evidence. He alleged that he was involved with DJW’s care before the separation and that he has encountered several difficulties in maintaining a relationship with DJW since that time because his new residence is not wheelchair friendly and DJW’s mother is resistant towards him.

DJW’s parents reached an agreement for DJW’s Will to be made in the following terms:

  •  To his mother:
  1.  a gift of $100,000;
  2.  any home that he owns, or if he does not own a home, $400,000; and
  3. an income from 3/4 of the rest of the estate for the rest of her life.

On his mother’s death or if she did not survive him, her gift was to pass equally to his sisters E and S.

  • To his father, the remaining 1/4 of the estate.

The Court was not satisfied that the proposed Will accurately reflects the likely intentions of DJW and therefore, decided that it was not reasonable to order that a Statutory Will be made for him in those terms.

However, the Court did consider that it was appropriate for a Statutory Will to be made for DJW in the following terms:

  • To his mother, half of his estate.
  • To his father, one-quarter of his estate.
  • To his sisters, E and S, one-quarter of his estate equally.

In reaching this conclusion, the Court determined that DJW would likely have regard to the following facts:

  1. His mother, father and sister, E, have a primary claim on his estate and should benefit directly from his Will;
  2. His mother had already received substantial benefits as a result of his condition, including $250,000 set aside from his award of damages for her gratuitous services and a carer’s allowance; and
  3. He has regular contact and an apparently comfortable relationship with his siblings, E and S.

This case demonstrates the very serious nature of these applications and the Court’s attitude towards them. Ultimately, the Court must consider all of the relevant facts and circumstances and reach a decision according to Law, as opposed to the views of/or any agreement reached between the parties.



Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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