Australia: Did the old man have the mental capacity to change his will? Which case won?

The Facts

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 Will.

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 signed.

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 out'.
  • 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 contextual.
  • 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 father's capacity.
  • 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
Vote case B – the case for the children

Joshua Crowther
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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