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

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.