With an increasing age expectancy in our population and the problems which arise as a result of age (such as dementia), it is becoming more common for people to challenge Wills based on one’s capacity. I recently read the Supreme Court decision of Ruskey-Fleming v Cook  QSC 142 which highlighted the importance of a solicitor’s professional duty to ensure the will maker has what is known as ‘testamentary capacity’.
The background of this matter is as follows:
- The deceased passed away leaving two children (a daughter and son) and an estate valued at approximately $2.6 million.
- The deceased executed two Wills, one in 2000 (‘the 2000 Will’) and the other in 2007 (‘the 2007 Will’). The 2007 Will was made when the deceased was 91 years of age and suffering from numerous illnesses and cognitive decline. The 2007 Will significantly favoured the daughter, whilst the 2000 Will had left the estate equally amongst the two children.
- The daughter attempted to propound the 2007 Will (ie. make an application for probate on the basis that it was the last will and testament of the deceased).
- The son then made a counterclaim, arguing that the 2007 Will was invalid and the 2000 Will should be proved in solemn form.
As a result, the Court considered whether the deceased had testamentary capacity at the time of making the 2007 Will. In particular:
- The evidence of the Solicitor who took the instructions from the deceased for the 2007 Will. The Court noted that at the time of taking instructions from the deceased, the deceased had struggled to identify how many children and grandchildren he had and his comment to the Solicitor was that the changes to the Will were what his daughter wanted.
- The medical notes from the nursing home. In particular, around the time of making the 2007 Will, medical notes indicated that the deceased suffered persistent and frequent episodes of restlessness, confusion, wandering and disorientation. Further, a number of tests were carried out in which the deceased scored a result indicative of significant impairment.
- The deceased’s treating doctor at the nursing home sent a letter to the Solicitor, after the deceased signed the 2007 Will, stating that the deceased could not make legal decisions.
Given the above evidence, the Court determined that the deceased did not have testamentary capacity at the time of making the 2007 Will. Accordingly, the 2007 Will was set aside and the 2000 Will was enforced by the Court.
This case shows the importance of having a Will properly documented by a Solicitor so that the risk of a challenge being made against a Will is minimised. If you would like to change your Will or contest a Will based on the will maker’s capacity, please don’t hesitate to contact me. Our estate lawyers have helped many in challenging a will based on capacity issues.
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