In order to create a valid Will, the writer must have capacity at the time they give instructions to their solicitor to draft the Will and at the time they execute it.
The law requires that a testator:-
- Must have understood the nature and significance of the act of making a Will;
- Must have understood the nature, extent and value of their Estate;
- Needs to be capable of comprehending and appreciating any claim to their Estate; and
- Must not have suffered from a delusion of the mind that influenced the terms of the Will at the time that it was made.
If all of these elements are present, then the testator will likely be found to have capacity and the Court will uphold the Will by granting probate.
A Case Study
The issue of a decorated World War II veteran’s testamentary capacity was recently canvassed in a Supreme Court of Victoria decision. A Melbourne woman was ordered to pay substantial legal costs to the deceased’s family after failing to win her battle for a significant portion of the deceased’s Estate after it had been found that she appeared to be heavily involved with the deceased, in circumstances where he was likely to be vulnerable or impressionable as a result of his age and mental capacity.
Ultimately, it was found that the deceased did not have sufficient mental capacity to alter his Will so frequently prior to his death. Evidence was heard from his solicitor and his doctor on this issue. In 2018, the deceased instructed his solicitor to prepare a Will appointing three executors who each would receive $25,000 – the Melbourne woman was one of these three Executors. The following year in 2019, the deceased again altered his Will, this time appointing her as sole executor and bequeathing her $75,000. He also cut his adult children out of his Will and reduced his ailing wife’s inheritance by half. Three months later, in January 2020, the deceased changed his Will a final time to bequeath his $1,000,000 Bentleigh East family home to the Melbourne woman.
The Supreme Court of Victoria’s Justice Kate McMillan found, that while he deceased had a general understanding of his assets, his understanding of the value of his assets was far beyond their actual value. He also failed to comprehend or appreciate the claims of his wife and the two children on his Estate. Perhaps most significantly, given the deceased’s age and medical history, Justice McMillan found that the medical evidence put forth by the Melbournian woman was insufficient to demonstrate, on the balance of probabilities, that the deceased had testamentary capacity, and therefore overturned the deceased’s latest 2020 Will.
It’s Complicated
The death of a family member or close friend is always a difficult process to navigate, particularly where disputes arise regarding the deceased’s Estate. Disputes concerning testamentary capacity can be especially emotionally charged, drawn out and factually complex.
If you would like to amend your Will or are concerned about a loved one’s ability to execute a valid Will, contact one of the Estate Solicitors at Tiyce & Lawyers to provide you with advice and assist you through the process.
Tiyce & Lawyers – we’re here when you need us.
