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Question of Capacity Estate Litigation Lawyers Brisbane Gold Coast Sunshine Coast Queensland

Questions of capacity – when there are suspicions about a Will maker’s capacity at the time of making their Will

I recently read an article from the UK about an elderly lady who committed suicide, leaving her £250,000 bungalow to her doctor’s daughter, and the residue of her Estate to her financial advisor. Mrs R’s previous Will had left her entire Estate to her sisters in equal shares, and one of them is now demanding an investigation into the circumstances in which Mrs R made her most recent Will, as she believes Mrs R did not have the necessary capacity to make it.

What evidence will the Court look at when deciding whether or not the Will maker had capacity?

As no two capacity cases are the same, the Court will look to the circumstances in which the Will maker gave their instructions, and signed their Will. A few case examples of these circumstances are:

1.       Re: Crowson (2001) QSC 393.

In this case, the Will maker, Mr C, had an illness which affected his ability to write and communicate. However, he could use a machine to type messages which would then be transmitted using a computer-generated voice.

When meeting Mr C to execute his Will, Mr C’s solicitor videotaped the meeting. In the video, Mr C can be seen and heard replying to questions directly and with the use of his machine. The Court held that Mr C did have capacity to make his Will.

2.       Fradgley v Pocklington [2011] QSC 227.

The Will maker in this case, Miss D, had suffered from a stroke just a few months before providing instructions for and executing her Will. In the new Will, Miss D gave instructions to her solicitor that she wished to reduce her daughter’s share of her Estate by gifting $200,000.00 to a friend of hers.

The Court found that Miss D was either affected by delusion or paranoia about her daughter, or she did not understand or comprehend the fact that in reducing her daughter’s share of her Estate, her daughter could contest her Will. Consequently, Miss D’s new Will was set aside and Probate of her previous Will was granted.

3.       Re Clare [2009] QSC 403.

In this case, the Will maker, Ms C, left a document headed “This is the Last Will and Testament of me” dated approximately two years before she committed suicide. Her brothers, Mr PG and Mr MG applied for Letters of Administration on the basis that Ms C did not have capacity to make her Will. At the time she made her Will, Ms C was subject to an Involuntary Treatment Order under the Mental Health Act 2000 (Qld) as she had been diagnosed as suffering from schizophrenia, which included delusions and paranoia. The Court found that Ms C did not have capacity to make her Will.

If you are concerned that your loved one did not have capacity to make their Will, you should contact an experienced Estate litigation lawyer. Please contact me should you require assistance or advice.

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Chloe Kopilovic

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Chloe Kopilovic

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