Contesting a Will because a loved one lacked testamentary capacity

Published 05 Jul 2013

There are many reasons why people may choose to Contest a Will or engage in an Inheritance Dispute.

For instance, the law allows that a Will can be contested where there is doubt surrounding the mental capacity of the deceased to understand what they were doing when providing directions for the distribution of their estate.

This was the context for a recent case before the NSW Supreme Court.

The plaintiffs’ mother passed away in July of 2011, leaving an estate worth approximately $400,000. The deceased did not have a spouse or partner, and the plaintiffs were her only children.

Thus, if the deceased had passed away intestate, the plaintiffs would have been the sole benefactors of her estate.

She did, however, leave a document purporting to be a Will, written in May of 2005, appointing her sister as executor and trustee, and directing that the whole of her estate be given to one of the plaintiffs, her son.

The sister had passed away in February 2012, and despite having agreed to redistribute the estate more equitably among them, the plaintiffs sought administration on intestacy.

The plaintiffs asserted that their mother had lacked testamentary capacity – the legal and mental ability to make a valid Will.

While the application was not opposed, the plaintiffs nonetheless had to convince the court that the deceased did not possess testamentary capacity at the time she wrote the purported Will.

Evidence was provided by the deceased’s attending general practitioner, who provided a report setting out his opinion on this point.

The doctor said that while the deceased, in his view, “would have understood the basics of the intention of a Will”, she would not have been able to evaluate or discriminate between the strengths of the various claims on her estate.

Further, the doctor supplied clinical records appearing to show that dementia-like symptoms had begun appear in the deceased around 2003.

The judge was satisfied that the deceased was suffering from dementia for at least three years prior to when she made up her will.

Thus the deceased would have lacked testamentary capacity at that time and the Will was declared invalid.

With no evidence showing that another Will had been proved, the judge was satisfied that the deceased had died intestate and appointed the plaintiffs as administrators.

For help with estate disputes of all kinds, get in touch with specialist Contesting Wills Lawyers.

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