Statutory will: Birth trauma claim proceeds

A Limited v J (No 2) [2017] NSWSC 896 provides an example of orders for a statutory will (Succession Act 2006 (NSW)) for a child aged 14 years, who had the benefit of proceeds of a compensation claim arising from her brain injury suffered at birth.

An earlier statutory will had been made in circumstances where the child was then about to undergo what was feared could be a life-threatening procedure in hospital: [10]. In relation to the content of the new will, there was disagreement as between the mother and father of the child: [22]. At [25] Ward CJ Eq noted:

The nub of the factual dispute in this regard is that the Father maintains that the Mother has understated his contribution to the Child’s welfare over the years and, in essence, attributes blame for the lack of time spent by him with the Child at least in part to the Mother; the Mother, on the other hand, believes that her ex-husband effectively abandoned the Child and the family as a whole.

The Court held at [63] that the proposed apportionment of residue put forward by the Mother’s proposed will reflects what a reasonable person, in the position of the Child, would do to recognise the respective claims on the Child’s testamentary bounty of the Father on the one hand and the siblings on the other. Ultimately a 42.5% share of residue was left to the Mother, with the remainder of the residue divided in equal shares between the Father and the six siblings.

At [71] the Court further held that there should be an adjustment to take into account the effect of superannuation payouts and at [77] that it was appropriate to include in the will provision for the establishment of testamentary trusts.

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