CASE A

The case for the son

CASE B

The case for the daughter

• As the anaesthetist who served as my expert witness said: "... if the surgical team felt that [my mother] was capable of consenting to her own surgery, then it would reasonably follow that the team would also estimate her to have testamentary capacity to complete the change of will".
• The medical notes from the night of the surgery do not record my mother showing any signs of cognitive impairment, and the doctors involved in making the change of will gave evidence that they did not actually observe any obvious signs of cognitive impairment.
• It may be true that Mum had previously wanted my sister and me to inherit equally, but in the lead up to her surgery, circumstances had changed and it made perfect sense that she wanted to change her will. She knew exactly what she was doing.
• Mum and my sister had grown apart in recent years. I was the one living with Mum and caring for her daily in her final years. Mum became less mobile and more dependent on me for assistance in her daily routine and for transportation to see her doctors, friends, church attendance and shopping up until her death.
• My sister didn't even ask Mum to the memorial services she held for our father during the last five years of Mum's life. In December 2019, we had Christmas at our house and my sister didn't even come. Nor did she contact Mum between 30 December 2019 and 10 January 2020. Then, when Mum died in late January, my sister was away on holiday.
• It's clear that Mum was of sound mind when she made the change of will and that she knew and approved of its contents. The court must find that the change of will is valid.

• This last-minute change of will was very out of character for Mum, who in the past has always sought legal advice to ensure careful estate planning.
• Mum made the change of will when she was seriously ill and on heavy medications. In the afternoon of the day of the surgery, Mum had been given buprenorphine, midazolam, fentanyl, and oxycodone, all of which can cause cognitive impairment. As my expert witness says, it would be surprising if my mother was not seriously impaired. This is why the general advice given to patients following either anaesthesia or sedation is that they should not "drive, operate machinery or complete legal documents" within 24 hours following the procedure.
• The doctors in the operating theatre did not make positive enquiries about my mother's mental state and they should have.
• Mum always wanted to treat my brother and me equally. She told me many times that my brother and I would each receive half of her estate. Nothing happened that would cause her to deviate from this plan. I've always been close to Mum, and even in later years we attended many family functions together.
• It's true that my brother took on a greater burden of mum's daily care in her final years, but since he wasn't paying her any rent and he was unemployed, he was well placed to help her. By contrast, I was living some distance away and managing a busy family.
• The year 2019 was a difficult one for me. I was dealing with difficult personal matters and did not see my mother as often as usual. I didn't want to burden her with my problems when she had enough of her own to deal with. It was also difficult to visit my mother because my brother was living with her, and he doesn't like me.
• I only went on the holiday in January 2020 because it was pre-booked, and mum wanted me to go. No-one was expecting her condition to deteriorate the way it did.
• It's clear that Mum wasn't of sound mind when she signed the change of will document, nor did she know or approve of its contents. The court must find that the change of will was invalid.