Woman claims grandmother lacked testamentary capacity to write will

Published 15 Aug 2017

Testamentary capacity is a key consideration when ruling whether a will is valid. Put simply, did the individual writing the will have the mental acuity to understand what they were doing and its impact on their estate?

This becomes a common question in cases where someone shows signs of dementia or other cognitive problems during or after the time they make plans for their estate.

A woman recently challenged her grandmother’s will on this basis after suggesting her loved one had shown clear signs of poor cognition during a three-year period when she wrote four separate wills.

The four wills

The grandmother’s estate, worth approximately $1 million, was left to the plaintiff and her four other granddaughters in a June 2011 will. She also appointed the plaintiff as executrix.

However, the grandmother – who died in 2015 – revised this will in November the same year, instead choosing to split her assets equally between the Cancer Council of NSW and Wee Waa Anglican Church. She also appointed a new executor – her brother Cecil, who, crucially, had died nine years previously.

A November 2012 will reiterated the asset split between the charity and the church, but appointed her surviving brother, Edward, as executor. However, Edward was in severely poor health and died less than a month later.

A fourth will, produced in February 2013, nominated NSW Trustee and Guardian as executor.

Granddaughter challenges will

The deceased’s granddaughter challenged the last three wills, arguing that her grandmother lacked the testamentary capacity to make them.

A key piece of evidence was that her grandmother had appointed her long-deceased brother as executor of her estate, as well as choosing her very sick surviving brother in similar circumstances a year later.

The plaintiff also provided medical evidence from 2012 that showed her grandmother was suffering several cognitive failings, including poor memory, disorientation and disorganisation. The doctor diagnosed her as appearing to have Alzheimer’s dementia.

According to the granddaughter, the deceased was also showing erratic behaviour between September and December 2011, such as hitting her dog, becoming paranoid over lost money and throwing belongings.

Original decision and appeal

An original trial judge ruled that the deceased did have testamentary capacity to write her wills, but the plaintiff challenged the decision in the Court of Appeal.

The appellate judges ruled in the plaintiff’s favour, acknowledging that the evidence suggested, more likely than not, her grandmother did not have the testamentary capacity to produce the latter three wills.

They granted probate of the deceased’s estate to her granddaughter under the instructions of the June 2011 will.

Are you concerned that a loved one didn’t have testamentary capacity to write their will? Please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.

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