These days, as parents and grandparents are living longer and property prices continue to rise, we are seeing an increase in the claims being brought against deceased persons’ estates.
One common type of claim which is regularly brought against a deceased person’s estate is proceedings claiming that a will is invalid on grounds that the person making the will did not have testamentary capacity at the time of preparing the will.
The onus is always on an executor to prove to the satisfaction of the Court that the Will maker held testamentary capacity at the time of making his or her will.
Where a will appears to be rational on its face and has been signed by the person making the will before at least two attesting witnesses, an executor propounding the will is entitled to a presumption that the will is valid. This means that the onus shifts to the person seeking to challenge the validity of the will to present evidence to the Court which raises doubts on whether the will maker did hold testamentary capacity at the time of making the will. Once evidence of this nature is tendered to the Court at the hearing, the onus then shifts back to the party seeking to propound the will to present evidence to prove to the satisfaction of the Court that the Will maker did have testamentary capacity at the relevant time. The Court is required to consider all of the relevant evidence and must be satisfied on the evidence as a whole that it supports a finding that the person held testamentary capacity. If the Court is not satisfied of this matter, it is required to find that the will is invalid.
It is often necessary to review contemporaneous medical records of the deceased person including hospital admission records and GP’s notes in the course of collating evidence to establish whether a person held testamentary capacity at the time of making a will. It is also common for the parties to obtain expert evidence from specialist medico-legal experts such as geriatricians, psychiatrists and neurologists. Evidence from lay witnesses who observed behaviour of the will maker in periods leading up to, and surrounding, the making of a will is sometimes helpful. Often, evidence from a solicitor who has prepared the will including file notes from the solicitor’s file recording the attendances on the Will maker are crucial.
Past cases have recognised that capacity to make a will is to be assessed with regard to the terms of the actual will made by the deceased. Whilst the test of capacity remains the same in all cases, the courts recognise that the application of the test will vary according to the complexity and officiousness or inofficiousness, of the particular will. A will is said to be “inofficious” where its terms appear to be uncontroversial when taking into account what would ordinarily be expected of the particular Will maker when having regard to their particular circumstances, and the persons who would ordinarily be expected to be included as beneficiaries of their estate.
In one recent case in the Supreme Court of NSW, the Judge recommended that if a person is over 70 years of age, or is being cared for by another person or lives in an aged care facility, or where there are reasons the solicitor may hold concerns that the person may not have testamentary capacity, the solicitor should make appropriate enquires of the person’s doctors and carers to ascertain whether there are any potential issues with the person’s capacity and keep careful file notes to record the outcome of any such enquiries.
Fox & Staniland Lawyers have a team of lawyers who have extensive experience in preparing wills for clients which have withstood claims of invalidity and acting for executors of estates and claimants in all aspects of estate litigation.