Daughters challenge the testamentary capacity of both parents

Published 31 Oct 2018

A long-running family feud has spilled over into the NSW Supreme Court, as six daughters contested the Wills of their parents. The siblings argued that both their mother and father lacked testamentary capacity when they executed their latest Wills.

The documents were signed in 2013, which was a time when both parents had been showing signs of deteriorating mental capacity. Their Wills were updated following a family split that saw five of the daughters align with the mother, while the remaining daughter supported her father.

Why did the family break up?

The parents had an atypical but stable relationship for many years leading up to 2012. The elderly retired couple lived apart, yet they remained seemingly content with the set-up.

However, in December 2012, the wife had a fall and was hospitalised. One of her daughters, who had long resented her father, intervened as an advocate for her mother in an effort to help her take control of her own finances.

This paved the way for the mother to declare an end to the marriage and ask for the matrimonial assets to be divided, otherwise a formal property settlement would be sought. The breakdown of the marriage came as a surprise to the father, and the family quickly broke down into factions.

As a result, both parents updated their Wills to exclude their spouse, as well as minimise the legacy left to whichever daughters sided with the opposing partner.

Did the parents lack testamentary capacity?

The estates were fairly sizeable following the division of assets, with the father’s worth an estimated $3.2 million and the mother’s valued at $1.9 million.

While both parents had shown signs of dementia in their later years, the judge was convinced they had the testamentary capacity to sign their last Wills based on evidence from solicitors, family and friends, and medical experts.

As such, the father’s estate will largely pass to the single daughter who sided with him after the family rift. The rest of his daughters are each set to receive $40,000. The mother’s shares in the family business will go to the five daughters who were loyal to her, while the residue of the estate will be divided between all six of her offspring. However, if any of the daughters are unhappy with the results, they could pursue a family provision claim.

To learn more about how to contest a Will in NSW, please contact Gerard Malouf & Partners Will Dispute Lawyers.

Free Call 1800 004 878 Make An EmailEnquiry

COVID-19 Notice

We are committed to looking after the health and safety interests of our clients and staff, find out how in our
COVID-19 Notice
 
  • Nsw Offices

    • North Parramatta
    • Sydney
    • Penrith
    • Ryde
    • Blacktown
    • Liverpool
    • Chatswood
    • Campbelltown
    • Erina
    • Newcastle
    • Wollongong
    • Ballina
    • Tamworth
    • Wagga Wagga
    • Rockdale
    • Baulkham Hills
    • Bondi Junction
    • Mudgee
    • Tweed Heads
  • Vic Offices

    • Melbourne
  • Qld Offices

    • Brisbane
    • Bundall
  • ACT OFFICES

    • Canberra City