I. STATUTORY PROVISIONS IN NEW SOUTH WALES
12.1 The testamentary capacity of minors is dealt with generally in s6 of the Wills, Probate and Administration Act, 1898:
6. (1) Subject to subsection (2), a will made by a minor shall not be valid.
(2) A valid will may be made by -
(a) a married person;
(b) a soldier of any country;
(c) a member of a naval, marine or air force of any country;
(d) a mariner or seaman;
notwithstanding that he is a minor.
(3) This section applies to a will made after the commencement of the Minors (Property and Contracts) Act, 1970.
“Minor” is defined in s3 to mean a person under the age of 18 years.
12.2 The effect of the Act in relation to minors may be summarised as follows:
- The minimum age for testamentary capacity is, in general, 18 years;
- A minor can make a will executed in accordance with the usual statutory formalities whilst married or otherwise having the status mentioned in section 6(2);1
- After a minor has ceased to be married or to otherwise have the status mentioned in s6(2), the minor can revoke a will but lacks capacity to make another will until he or she attains majority or again acquires testamentary capacity in accordance with s6(2), eg by remarrying;
- A minor can make a will, without complying with the statutory formalities, if the minor is a privileged testator when the will is made;2
- A minor can alter his or her will either
without complying with the formalities prescribed in si 8(1), whilst the minor is a privileged testator;3 or
(so it would appear) in accordance with the formalities prescribed in s18(1), whilst married or otherwise having the status mentioned in s6(2);4
- A minor can revoke his or her will by any of the means mentioned in s17(3).5
12.3 This legislative scheme was the result of recommendations made by this Commission in 1969 in its Report on Infancy in Relation to Contracts and Property. The recommendations were made by the Commission in the course of reviewing the law of contract and property as it affected minors. Since that report the testamentary capacity of minors has been considered by law reform agencies in other jurisdictions, and the adequacy of the current legislation can be evaluated in the light of various proposals and legislative solutions which were not considered by the Commission in 1969.
12.4 In the preceding chapter we recommended that no class of persons should have the status of being privileged testators. If that recommendation is implemented it would still leave s6 (para 12.1) intact, since the persons referred to in s6(2)(b) (c) and (d) are not “privileged testators” as defined in s3.6 Thus the situation, unless otherwise altered, would be:
- the minimum age for testamentary capacity would be, in general, 18 years;
- a minor could make a will in accordance with the usual statutory formalities whilst married or otherwise having the status mentioned in s6(2);
- after the minor has ceased to be married or to otherwise have the status mentioned in s6(2) he or she could revoke that will but would lack capacity to make another will until he or she attains majority or again acquires testamentary capacity in accordance with that subsection;
- a minor could probably alter his or her will in accordance with the formalities prescribed in s18(1), whilst married or otherwise having the status mentioned in s6(2);
- a minor could revoke his or her will by any of the means mentioned in s17(3), except that mentioned in s17(3)(c).7
II. ISSUES FOR POSSIBLE REFORM
12.5 Because of our other recommendations and the passage of time, we have reconsidered this Commission’s recommendations made in 1969 in the Report on In fancy in Relation to Contracts and Property.8
12.6 The issues which we shall consider in relation to the testamentary capacity of minors are:
- should the minimum age for testamentary capacity be reduced below 18?
- should a minor be entitled to make a will with judicial approval?
- should the exceptions to the testamentary incapacity of minors referred to in s6(2) be varied?
- should a minor’s power to alter a will be clarified?
III. SHOULD THE MINIMUM AGE FOR TESTAMENTARY CAPACITY BE REDUCED BELOW 18?
12.7 In our Report on In fancy in Relation to Contracts and Property we discussed the reasons for preferring that the general age of majority should be 18. Assuming no change in the provision allowing a minor who is a married person to make a will we do not favour any lowering of the general age of capacity.9 Eighteen is accepted throughout Australia as the age of majority and any case for stepping out of line in such a significant matter would need to be very persuasive. The unmarried minor wishing to make a will and having the maturity and means justifying doing so, will, in the foreseeable future, be sufficiently exceptional to be left to the ad hoc solution proposed in the next section We therefore recommend that the minimum age for testamentary capacity should not be reduced below 18.
IV. SHOULD A MINOR BE ENTITLED TO MAKE A WILL WITH JUDICIAL APPROVAL?
12.8 In New Zealand a minor aged over 16 years may make a will with the approval of the Public Trustee or a Magistrate’s Court.10 The Law Reform Commission of British Columbia has proposed that the Supreme Court be empowered to grant a minor of any age general testamentary capacity.11
12.9 Whilst a minor in New South Wales may obtain an order granting capacity to participate in any civil act where the Supreme Court considers it is for the benefit of the minor12 the term “civil act” does not extend to making a will.13 There is presently no power of judicial dispensation to allow minors to make wills. A minor therefore will die intestate, unless he or she has one of the statuses mentioned in s6(2) and chooses to make a will. Subject to any order made pursuant to the Family Provision Act, 1982, the unmarried intestate minor’s estate will devolve upon parents or, failing the existence of surviving parents, the brothers and sisters of the minor, or failing the existence of a surviving brother or sister upon other close relatives.14
12.10 There may be situations where it would be appropriate that a minor should be able to make a will varying the statutory order of intestate distribution. For example, a minor may be entitled to a substantial award of damages or otherwise be or become the owner of considerable assets. It may be quite inappropriate that the whole estate should devolve upon the minor’s surviving parents to the exclusion of a sibling or even some other person to whom a moral duty may be owed. Whilst we do not favour any general reduction in the age of testamentary capacity, a judicial power to grant such capacity (and to control it) would be appropriate. Unlike the New Zealand model we see no reason why the right to seek such approval should be confined to minors of any specific age, although obviously the age of the applicant will be a relevant factor in the court’s consideration of a particular application. This jurisdiction should be confined to the Supreme Court because the parental jurisdiction of the Crown in respect of minors traditionally has been exercised by the Supreme Court and because the jurisdiction is a novel one.15
12.11 In our view the judicial power should be confined to approval in advance of a specific will and ought not to be so wide as simply to confer testamentary capacity on the minor. We appreciate the practical arguments to the contrary that have been advanced,16 but consider that the exercise of such an exceptional power ought to be closely controlled and that in any event the court generally would be unwilling to give a general authority to a minor even if it had power to do so.17 It must be remembered that a minor, despite his or her maturity, is likely to be subject to what would be regarded as relationships of influence than is an adult. The possibility of undue influence can be considered by the court where there is a specific will, and the minor’s reasons for any particular disposition can be explored.
12.12 We therefore recommend that the Supreme Court should be invested with jurisdiction to grant capacity to a minor of any age to make a specific will subject to such conditions as the Court thinks fit.
V. SHOULD THE EXCEPTIONS TO THE TESTAMENTARY INCAPACITY OF MINORS BE VARIED?
12.13 Professor D J Harland18 has criticised the New South Wales legislation and suggested that capacity should be granted to any minor who is or has been married, in accordance with section 12 of the Wills Amendment Act 1955 (NZ).19 This extension would overcome the problem of loss of capacity where a minor is divorced or the spouse of the minor dies before the minor attains 18 and the minor does not otherwise have testamentary capacity. If a minor is considered to have sufficient maturity on marriage to have testamentary capacity, it is anomalous and illogical that termination of the marriage should restore the former disability. Indeed, the termination of marriage and the possibility that there may be children born to the former marriage may make it important for the minor to alter (rather than simply revoke) a will made during marriage or make a completely fresh one. This need maybe heightened by the automatic revocation of portions of a former will by virtue of the recommendations which we make in chapter 10. It is therefore recommended that section 6 of the Wills, Probate and Administration Act, 1898 should be amended to allow a valid will to be made by a minor who is or has been married.
12.14 The question of whether, in addition, a minor should be able to make a will in contemplation of marriage is somewhat complex The purpose of the exception to the existing general rule that a will is revoked by marriage (discussed in para 9.13) is to allow a testator to make a will anticipating a significant change in the testator’s circumstances and to avoid the unnecessary revocation of a will premised on an impending marriage when the marriage takes place. The provision presupposes that, prior to marriage, the testator in question has testamentary capacity. This will not usually be the case with a minor, although a minor who does have testamentary capacity prior to marriage (for example, a member of the defence forces or a mariner or seaman could make a valid will expressed to be in contemplation of a marriage, and the will would continue to be effective once that marriage occurred. However, we favour allowing a minor, who has the capacity to marry and lacks testamentary capacity, to make a will in contemplation of a particular marriage without having to apply for judicial approval, provided that the will is valid only if the marriage contemplated takes place. “A provision enabling a will to be made in contemplation of such a marriage recognizes that many young newlyweds maybe understandably lax about attending to the making of a will after their marriage.”20 The cost involved in requiring a minor contemplating marriage to seek judicial approval of a will premised on the marriage would be avoided by this proposal which assumes that a minor contemplating marriage who decides to make a will has thereby indicated adequate proof of his or her maturity and understanding of the significance of the step about to be taken. We therefore recommend that a will made by a minor who has the capacity to marry but otherwise lacks testamentary capacity should be valid where the will is made in contemplation of a particular marriage and that marriage takes place. The contemplation of marriage need not, on our proposal, be expressed in the will (cf para 9.21). However this would, we assume, normally be so expressed in those comparatively rare cases where a minor resorts to this newly- proposed power to make a will.
12.15 In para 11.36 we recommend that no class of persons shall have the status of being privileged testators. Under the Australian Defence Act 1903, no person is liable to be called up for service in time of war if under the age of 18.21 However s6(2) of the Wills, Probate and Administration Act, 1898 is not confined to wartime and clearly encompasses a group of persons who may be under 18. But most will never be in a peculiarly hazardous employment situation, and this is particularly true in time of peace. In our view the reasons underlying our recommendation of the repeal of the status of privileged testator, coupled with the availability of the modern rules of intestate succession and the remedies available under the Family Provision Act, 1982 lead us to recommend that section 6(2) (b)(c) and (d) should be repealed.
VI. SHOULD A MINOR’S POWER TO ALTER A WILL BE CLARIFIED?
12.16 We have already noted the uncertainty of the existing Act in relation to the power of minors who have capacity to make a will pursuant to s6(2) to alter that will during the currency of such capacity (para 12.2). Such uncertainty arises from the fact that s6 allows such a minor to make a will (implicitly subject to compliance with the usual formalities) but s18 does not expressly provide for the minor to alter a will. Whilst presumably the greater encompasses the lesser, there is a doubt on the matter, particularly since other sections of the Act, notably sections 6(2) and 17(4), specifically extend to minors. These doubts would remain even if s6 is amended in the manner already proposed by us. We therefore recommend that section 18 be amended by making it clear that it extends to alterations by minors made whilst they have capacity to make a will.
FOOTNOTES
1. See para 11.4.
2. Sections 6 and 10 of the Wills, Probate & Administration Act, 1898.
3. Id. s18(2).
4. No section of the Act specifically so provides, but it is submitted that this follows by implication from s18(2).
5. Section 17(4). Section 17 is set out in para 2.36 of this Report.
6. Cf para 11.4.
7. Section 17(3) (c) provides that a will maybe revoked if at the time of the revocation the testator is a privileged testator. by his declaration of an intention to revoke the will.
8. LRC 6 (1969) esp at pp7-17.
9. We therefore depart from the recent recommendation of the Law Reform Commission of Tasmania in its Report on Reform in the Law of Wills (1983) that the minimum age be reduced to 16.
10. Wills Amendment Act. 1969 (NZ) s2.
11. Report on the Making and Revocation of Wills (1981) at pp1823.
12. Minors (Property and Contracts) Act. 1970, s26.
13. Ibid. s6(2).
14. Wills, Probate and Administration Act. 1898, s61B. It is assumed that the unmarried minor has no issue.
15. See Report referred to in n 8 at p95 n 24.
16. In its Report on the Making and Revocation of Wills (1981) the Law Reform Commission of British Columbia recommended (at pp20-21) against the New Zealand model and in favour of the wider type of authority. It argued that the Courts inquiry under legislation in the New Zealand mould would necessarily have to extend beyond an issue of the minors capacity to questions such as the extent of the minors property, his or her legal and moral obligations, the interpretation of the wording of the will put forward for approval in advance, and the tax implications of the proposed dispositions.
17. Cf the courts practice in exercising its jurisdiction under s81 of the Trustee Act. 1925 (NSW).
18. The Law of Minors in Relation to Contracts and Property (1974) at pp174, 175.
19. To similar effect is s9(1) of the Wills Act. 1918 (Tasmania).
20. Law Reform Commission of British Columbia Report on the Making and Revocation of Wills (1981) at p21.
21. Section 59.
