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Capacity – Why not to leave making a Will too late

Author: Robert Lamb
4 min read
25 August 2021

Key Takeaways

In the recent case of Greer –v- Greer, the Queensland Court of Appeal had to decide whether the person who made a Will (the testator) had the capacity to make his Will.

A person must have a required level of cognitive ability (as determined by a Judge) to make a binding agreement or document. The legal term for this is “capacity”. If the person is found not to have capacity, the Will will be invalid and must be set aside.

Since the English case of Banks v Goodfellow in 1870 the legal test for capacity has been whether the testator:

  1. is aware of and understands the significance of the legal act of making a Will;
  2. is aware, at least in general terms, of the nature, extent, and value of the estate that they have the power to dispose of;
  3. is aware of those people who may have a claim upon the estate and the basis for, and nature of, the claims;
  4. can evaluate, and discriminate between, the respective strengths of the claims of such persons and does not suffer from a condition that detrimentally affects his or her ability to make such a decision.

This test often raises very complex questions based on the facts of each individual case.

In the absence of evidence of a mental disorder which may affect capacity, the general rule is that the Court presumes that the testator has capacity to make a Will. It is therefore the burden of a party (usually a person who claims to have been excluded) to prove that a testator did not have capacity.

If the Court has to decide based on evidence presented, it may take into account a wide variety of factors, including:

  1. The nature of the Will, including whether it is simple or complex.
  2. Whether there are any provisions which are irrational.
  3. Whether there are beneficiaries who are excluded including the exclusion of persons naturally having a claim upon the testator (such as family).
  4. Extreme age, sickness, or anyone who has the motive or opportunity to exercise undue influence on the drawer of the Will taking a substantial benefit.

In a recent case [2], the testator, Mr Greer, had a family from his first marriage and a family from his second marriage. 

The testator had made a Will in 2001 where he appointed an executor and left his entire estate to his son from his second marriage. 

His son and daughter-in-law from the second marriage had been caring for the testator during his old age. However, the son suffered a physical injury and was, for a period, unable to look after his father who had to seek respite care in a nursing home as a result. 

The testator resented this and in 2017 made a second Will revoking his first Will. The second Will appointed his son from his first marriage as the executor and left his estate to the children from his first marriage, excluding his son from his second marriage. The testator at the time of making his second Will was an unwell, elderly man and had a long list of physical and mental health issues. 

The judge considered all the evidence, including expert advice from doctors, and found that there was strong evidence that the testator did not have testamentary capacity at the time he executed the second Will. The son from the testator’s first marriage and the executor of the Second Will appealed that decision.

The Court of Appeal dismissed the Appeal. The Court found that there was no error of law and agreed that the Supreme Court had strong evidence that the testator lacked testamentary capacity at the time he executed the second Will.

The second Will was set aside and the first Will was used to administer the estate.

The above example simplifies a very complex case and lengthy judgments of both Courts. 

The facts reveal a very traumatic event for the testator and his family. The lengthy court case which lasted three years no doubt cost the parties and the Estate a great deal of anguish, time and money.

The case shows and reinforces the proposition that the making of a Will should not be delayed and that they should be regularly reviewed.

At Hillhouse we can assist you with making a Will, or reviewing your current Will considering changes in circumstances.

Send us an email or call 07 3220 1144 to discuss your personal circumstances.

[2] Simplistically and this of course is not a complete exposition of the facts of the recent court case.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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