Testamentary capacity affected by medical concerns in NSW case

Published 10 Jun 2016

Creating a will is an extremely important procedure for Australians of any age. Whenever preparing such a document, it’s important everybody adheres to a strict set of legal criteria to ensure their wishes are fulfilled after they pass.

However, it’s not uncommon for people to contest a will after the event of a person’s death for a range of different reasons. Family members may feel like a will’s provision did not adequately reflect their relationship with the deceased and others could get the idea that the testator or testatrix was not in a position to create the document accurately and as they intended. Whether this was due to undue influence or a lack of capacity brought on by illness, it’s important that people are able to question the validity of the document.

As a recent case in NSW reveals, there are a number of conditions people have to satisfy to prove they are capable of correctly preparing a will.

How can testamentary capacity affect a contesting wills claim?

There are four different conditions a person must satisfy if they wish to be able to create a legally recognised will. A testator must be able to:

  • Understand the nature and potential effects of the will’s creation.
  • Recognise the value and emotional worth of any assets being passed on.
  • Acknowledge any relevant claims against these decisions.
  • Exhibit clear mental capacity and comprehension of what the process means for themselves and the beneficiaries.

In a case before the Supreme Court in NSW recently, family members determined that while they thought the deceased had definitely satisfied the first two requirements, in that she knew it was an important document and that it involved her assets, she didn’t appear to be completely well.

In an allegation that was verified by psychiatrists, it was revealed that the deceased did in fact have a delusional disorder, which affected the relationships she had with her children and the way she viewed her property and other assets. In particular, when creating her will, the deceased believed that her property was constantly under threat by thieves.

The fact that these incorrect beliefs affected the will-making process led the judge to revoke the grant of probate that was made to the defendants in 2013.

To find out more about the process of contesting a will, contact the experts at Gerard Malouf and Partners.

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