Of sound mind or not? When is capacity a problem in will making?
In New South Wales, the power a person has to dispose of property by will on their death is granted by statute (section 4 of the Succession Act 2006 (NSW)). When exercising this power, it is to be inferred that the person making their will has the capacity to do so. That capacity, however, can be challenged.
The courts have said that when making a will a testator must be of sound mind, memory and understanding. According to Banks v Goodfellow (1870) LR 5 QB 549, this means that at the time of completing their will, the testator must:
understand the nature and effect of the will;
understand the extent of the property that they are disposing of; and
be able to comprehend who should or should not benefit from their will (whether they ultimately provide for them in their will or not).
If a family member does not like a will, are they able to set it aside simply because they claim the testator:
lacked capacity?
was suffering from dementia?
was suffering from delusions?
It will depend on the circumstances of each case.
What if the person was suffering some form of mental incapacity at the time of making their will?
This can, but will not necessarily, invalidate the testator's will, and will depend on the circumstances.
It has been accepted that a person suffering from a mental illness or disease may have moments of lucidity and a will made during a testator's lucid moments can be upheld as a valid will. If the will is challenged, evidence will need to be produced by the party propounding the will to prove capacity.
Dementia/Alzheimer's
If a testator who has dementia makes a will, the fact that the testator has dementia does not automatically result in their will being deemed invalid. As with a lot of mental illnesses, it depends on how the illness presents. A testator suffering from dementia (particularly in the early stages) may still have sufficient testamentary capacity to make a valid will. Medical evidence to support this may prove useful but is not always relied on by the courts.
Yet, in other cases the will has been held to be invalid. One example is the case of In the Will of Esme Jane Ferris (deceased) [2020] QSC 26. In this matter, the deceased's solicitor had met with her in October 2015 and formed the view that she did not understand the consequences of her actions and therefore could not execute a legal document. Further, in March 2016 the deceased had been examined by a psychiatrist who diagnosed the deceased as suffering from rapidly progressing Alzheimer's disease. Notwithstanding this, a new will was subsequently prepared and signed by the deceased. The will was held to be invalid by the Court.
Delusions
When considering a person suffering from delusions, the courts will look at how or if those delusions are connected to the person's testamentary capacity.
In one case, the testator believed that he was being pursued by devils and evil spirits as well as a man who was not connected to him and as it turned out, who had been dead for several years. Most people would think this would be a sufficient basis to successfully challenge a will on the grounds that the person lacked testamentary capacity at the time of making their will, wouldn't they?
The Court did not agree. The testator was apparently generally rational in relation to other matters and capable of managing his own business affairs. As a result it was found that he had testamentary capacity. The delusions were not relevant to testamentary capacity in this instance (Banks v Goodfellow (1870) LR 5 QB 549).
In another case, the testatrix had made a large number of wills. She made 5 wills and a codicil after November 1933. Her last will and codicil was made in 1940. Prior to the wills executed after November 1933, the testatrix had named 2 nephews (who were also solicitors and who had been looking after her affairs for at least 20 years) as her executors as well as beneficiaries in all prior known wills. The change in her will appears to have come about as a result of insane delusions regarding the conduct of those nephews and her false belief that she had not signed certain documents.
The Court was satisfied that the testatrix was suffering from insane delusions and that these delusions existed before December 1933 when she first took steps to exclude her 2 nephews from her will. As a result, the Court found that probate should not be granted of the last will and codicil, as the insane delusion was such that it had an influence on her testamentary disposition and was therefore fatal to the validity of the testamentary documents (see Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295).
These cases show that the area of capacity in will making is not an easy area to navigate and great care is required. We can assist you. For more information please contact Snezana Vojvodic or Cherrie Homer.
For further articles on estate disputes, please see:
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.
contact
Snezana Vojvodic
Partner
E sjv@bwslawyers.com.au
P 02 9394 1074
Cherrie Homer
Special Counsel
E cah@bwslawyers.com.au
P 02 9394 1076