Hello, Adrian Corbould, Accredited Specialist – Wills and Estates, Turnbull Hill Lawyers.
Today’s question is what is the minimum age someone can make a will?
Section 5 of the Succession Act states if a minor makes a will, that will is invalid. So what does that mean?
Anyone who makes a will and their age is less than 18, that will is not legal. Therefore it can’t be used to administer someone’s estate.
So that means that for the majority of persons under 18 their estate is dealt with under the laws of intestacy.
Intestacy is the law that states that in order of preference assets are left to one’s spouse: If there’s no spouse, it goes equally to one’s children equally. If there’s no children, then it goes equally to one’s parents.
The majority of persons under 18 don’t have a spouse and don’t have children, so in the majority of instances their assets are divided equally between their parents.
There is an exception to that rule about minors, in that a minor can make a valid will if it’s in contemplation of marriage, but that will is not valid unless that marriage actually occurs.
Also a minor who is married can make a will, though that brings in the added difficulty of how two persons under 18 get married. Well, the minimum age to get married is 16, and you generally have to convince a court why you want to get married before they issue a marriage certificate, and that involves establishing the degree of commitment together, maturity, and several other factors.
So in the majority of instances someone under 18, they cannot make a valid will, and if they are deceased before the age of 18, their estate is subject to the laws of intestacy, and the majority of instances it goes to both parents equally. Section 16 of the Succession Act, however, states that a court can authorise a will for someone under 18, for a minor, though these are very isolated instances, but they still still happen.
There are instances where it may not be in a child’s interest that their estate go equally to their two parents. One parent may have had nothing to do with raising them, whereas the other parent did, and it would be prejudicial to the parent who did raise them that if half their assets went to the other parent. So this could be an instance where there is someone under 18 who actually does have a lot of funds, they could have been subject to a personal injury claim, where they received a lump sum in the millions of dollars, and it would be prejudicial to the parent that raised them if it went to the other parent.
Always lots of different circumstances – all have to be taken on their own merits.
So the thing to take away from this is – have to be over 18, and if they are under 18, have to be married or in contemplation of marriage, or get a court authorised will – very difficult – definitely need lawyer’s advice about that.