Testamentary capacity questions at the heart of will dispute

Published 13 Apr 2018

Anyone who produces a will must have the necessary mental clarity to make important life decisions for themselves. This is called testamentary capacity in legal parlance.

If the courts decide an individual lacked the required testamentary capacity, a will may be deemed invalid and revoked. But how does a judge decide whether or not the deceased was capable of drafting a will?

A recent case that went before the NSW Court of Appeal highlighted some of the key issues that arise during will disputes over testamentary capacity.

The circumstances of the original claim

The case centred around the $2 million estate of an 86-year-old woman who died in 2014. Her most recent will, which was written in 2004, left all her assets to a close friend and carer.

However, the deceased’s niece contested the will last year, claiming her aunt had lacked the testamentary capacity to write the document due to dementia. She was successful in her claim and the judge granted probate on a will from 2001, which listed the niece as the sole beneficiary to the estate.

But the deceased’s friend appealed the decision, meaning three new judges reviewed the original evidence, as well as legal precedent, to see whether they agreed with the trial judge’s ruling.

What issues were raised in the appeal?

Justice Stephen Robb relied on one piece of evidence in particular when making his decision during the original trial.

The woman had told her friend – the plaintiff – and her lawyer that she was leaving her niece out of the will because they had argued over disparaging remarks the niece had allegedly made about her mother (the deceased’s sister).

But the niece said the incident never occurred and claimed they had instead fallen out over euthanasia. The deceased asked her niece to research the topic and, after being told it was illegal in Australia, came to believe her niece had somehow prevented her from receiving assisted dying.

Justice Robb felt the deceased’s memory of the events was so distorted that it suggested a delusion and – combined with other evidence – ruled the woman did not have testamentary capacity when she wrote the 2004 will.

Appellate judges disagree with original decision

The appellate judges overturned the decision, stating that the deceased’s mistaken belief about the argument with her niece did not warrant a finding that she lacked testamentary capacity.

They instead preferred the evidence of the deceased’s lawyer and other individuals who were present at the time the 2004 will was signed. These witnesses claimed the woman showed all the essential signs of being mentally capable of establishing a will. Ultimately, the appellate judges upheld the friend’s appeal and granted probate for the 2004 will.

As we can see, testamentary capacity can be difficult to prove or disprove in will disputes. You should therefore contact an experienced contesting wills lawyer to build your case if you are attempting to challenge an estate on this basis.

Please get in touch with one of the experts at Gerard Malouf & Partners Will Dispute Lawyers for more information.

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