The Facts
Testator makes new will superseding earlier will
In 2011, a man signed a will which gave his estate to his three children equally. The will instructions were taken by his long-term solicitor. The man was aged 87 at the time.
In 2013 the man signed a new will which gave his estate to his three children and his de facto spouse equally. Again, the will instructions were taken by his long-term solicitor. The man was aged 89 by this time.
Probate sought for newer will when testator dies
The man died in 2014 and his solicitor (who was appointed executor) wished to apply for Grant of Probate of the 2013 Will.
The man’s children contested the 2013 will, claiming that by the time that will was made, their father lacked testamentary capacity due to lapses in memory, downturn in capacity generally and mild delusions.
Executor and de facto spouse claim that 2013 will is valid
The executor of the will and the de facto spouse rejected the children’s claims. In their view, the man knew what he was doing when he signed the new will in 2013.
In general, if a will is rational on its face and is duly executed there is a presumption that it is valid. However, this presumption may be displaced when a doubt is raised, so in this case it was up to the executor to prove to the court that the man was of “sound disposing mind” at the time the will was signed.
Expert commentary on the court's decision
Supreme Court finds man lacked capacity to make 2013 will
In the case Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, the Supreme Court of NSW found that the deceased, Mr Francis James Ryan (“Frank”), lacked the mental capacity to make his 2013 will.
In general, if a will is rational on its face and is duly executed, there is a presumption that the willmaker was mentally competent at the time of signing the will. This presumption may be displaced when a doubt is raised, whereby the party propounding the will must show that the willmaker was of “sound disposing mind”.
What a willmaker must be able to understand
It is not necessary to establish that a willmaker was capable of understanding all clauses of the disputed will, but it does need to be shown that the willmaker understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
Given that the children were able to raise a doubt about their father’s capacity at the time of signing his will, the executor was responsible for proving that Mr Ryan had the required capacity to make the 2013 will.
Proof that a testator has the capacity to make a will
There is a very famous legal case called Banks v Goodfellow, where the test to establish testamentary capacity is based on the following points.
While the solicitor’s evidence (and the spouse’s evidence) supported the proposition that Mr Ryan retained periods of relative clarity of thought during the period when he made the 2013 will, the evidence to the contrary was ultimately accepted.
Points demonstrating testator lacked required mental capacity
While the court had regard to the fact that the solicitor took relatively detailed file notes from Mr Ryan when he gave instructions, and to the fact that she knew him as a client for many years, there were several points which led to the court finding that he lacked capacity when he made the 2013 will.
As a result of the court’s determination, the 2013 will was held to be invalid, meaning probate was granted to the earlier 2011 will which divided the estate equally between Mr Ryan’s children.
The court noted that this was a complex case with a great deal of reliable and contemporaneous file notes on both sides. It is a case very relevant for solicitors who draft wills because matters of capacity need to be properly assessed. Such matters are not always obvious – as they weren’t for the solicitor drafting the 2013 will.
For more information, please see the articles below.
Does dementia make a will invalid?
How do you choose an executor for your will? – the horror story edition
Power of Attorney and Enduring Guardianship – the horror story edition