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Testator makes new will superseding earlier will
In 2011, a man signed a will which gave his estate to his three
children equally. The will instructions were taken by his long-term
solicitor. The man was aged 87 at the time.
In 2013 the man signed a new will which gave his estate to his
three children and his de facto spouse equally. Again, the will
instructions were taken by his long-term solicitor. The man was
aged 89 by this time.
Probate sought for newer will when testator dies
The man died in 2014 and his solicitor (who was appointed
executor) wished to apply for Grant of Probate of the 2013
The man's children contested the 2013 will, claiming that by
the time that will was made, their father lacked testamentary
capacity due to lapses in memory, downturn in capacity generally
and mild delusions.
Executor and de facto spouse claim that 2013 will is valid
The executor of the will and the de facto spouse rejected the
children's claims. In their view, the man knew what he was
doing when he signed the new will in 2013.
In general, if a will is rational on its face and is duly
executed there is a presumption that it is valid. However, this
presumption may be displaced when a doubt is raised, so in this
case it was up to the executor to prove to the court that the man
was of "sound disposing mind" at the time the will was
case a - The case for the executor
case b - The case for the children
- The changes made from the earlier will were not drastic.
Including a spouse in a will was not unusual or concerning and
it's not as though any of the children had been 'left
- The 2013 will was drafted by an experienced and competent
solicitor who was aware of capacity concerns. The solicitor had
known the man for many years and had drafted his earlier will.
- Contemporaneous file notes were detailed and show that the man
had testamentary capacity at the time instructions were given. The
man was able to have a normal conversation, knew all his children,
knew the role of the executor and what was happening with
distribution of his assets. His conversation was relevant and
- A letter from the man's GP supports the claim that the man
had the capacity to make a will in 2013. He wrote in 2015 (after
the man's death): "I am unable to be definite but my
sense, and his retained insight... lead me to say he may still have
retained capacity to understand implications of decisions he made
regarding a will in January 2013."
- The case manager of the man's nursing home witnessed the
will being signed and did not raise any concerns.
- Even if he had some issues relating to capacity in general, he
was experiencing lucid intervals when giving instructions for the
will, and signing the will, which means the will is valid. He knew
what he was doing when he made the will.
- Our father had always told both us and his spouse that our
finances were separate, and that this would be reflected in his
will – that is, he would make us his beneficiaries, rather
than his de facto spouse.
- While the truth of the solicitor's file notes is not in
question, there were underlying problems relating to our
- The solicitor was not aware, for example, that our father was
suffering from dementia. Nor was the solicitor aware of the NSW Law
Society Guidelines relating to capacity and so failed to take the
suggested precautionary measures when preparing the 2013 will.
- Notes from the nursing home show that after 2011 his condition
deteriorated and he suffered from delusions and confusion. For
example, he claimed that nursing staff had made him sleep in a
paddock and beg for food.
- Expert evidence (after death) suggested that while the man
could understand his assets and was seemingly aware, his illness
affected his higher order executive functions.
- The legal concept of a "lucid interval" is open to
doubt from a medical perspective. Functions such as attention and
alertness are thought to improve during such intervals, but not
necessarily memory or higher order executive function, which are
essential for testamentary capacity.
So, which case won?
Cast your judgment below to find out
Vote case A – the case for the executor
Stacks Law Firm
Vote case B – the case for the children
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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