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When can the Court make a Will?

Recently I read a case where the Court authorised the making of a Will for a man who suffered from dementia to such a degree that he did not have capacity to make a Will himself (incapacitated person). The case has garnered much attention both from the legal community and also in mainstream media.

The facts

The background of the case is as follows:

  1. Mr L is 82 years old and has suffered from dementia for some time.
  2. Mr L met Ms H through an introductions agency in May 2011 and they married shortly after in South Korea, Brisbane and Las Vegas.
  3. From August 2011 onwards, Ms H progressively transferred $3.1 million from Mr L’s bank accounts into her own accounts in South Korea.
  4. Through his litigation guardian, Mr L commenced proceedings against Ms H for engaging in fraud, undue influence and unconscionable conduct to procure the transfers of funds from his bank account to hers.
  5. The Court ordered Ms H to pay back the funds she had taken from Mr L, plus interest, and to transfer her properties in Korea to Mr L’s company.
  6. In June 2013, Ms H was arrested and charged with fraud and attempted fraud.
  7. In July 2013, Ms H came before the Court for failing to comply with the orders to pay back the funds she had taken from Mr L and transfer her properties to his company. The Judge ordered that Ms H should remain in jail until she complied with the orders made.
  8. Mr L made a Will in 2006 which was revoked by his marriage to Ms H.
  9. Mr L’s son applied to the Court for an order authorising a Will to be made for Mr L.
  10. Mr L’s son argued that if Mr L was able to give instructions as to the preparation of a Will, he would not want any part of his estate to be distributed to Ms H, due to her conduct in transferring his funds to her accounts.
  11. Mr L’s son submitted a draft Will which reflected the terms in the 2006 Will, and does not provide for Ms H to receive any part of Mr L’s estate.

What does a Court consider when making a Will for an incapacitated person?

In considering whether to make the order, the judge considered the following:

  • Whether Mr L has the capacity to make a Will. Mr K, who has been Mr L’s solicitor for over 30 years, gave evidence of Mr L’s lack of capacity, as did two doctors, Dr J and Dr D. The Judge was satisfied that Mr L did not have the capacity to make a Will.
  • Whether the proposed Will is one that Mr L would make if he had capacity to make a Will. The Judge found that due to Ms H’s conduct and the fact that the proposed Will is in essentially the same terms as the 2006 Will, it is likely that the proposed Will is one that Mr L would make if he had capacity.

If you are concerned that someone you know has lost the capacity to make a Will, or you are concerned about an incapacitated person, you should consult an experienced estate planning solicitor.

Please contact me should you require assistance or advice.

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Written by—

Chloe Kopilovic

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