Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 21 November 2015.
John lived with his mother for several years before she died, assuming the role as her primary carer. John’s sister, Jane lived next door, in a property also owned by their mother, rent-free for many years. John and Jane have a very poor relationship and have a history of drug abuse.
During the years that John cared for his mother, she was the subject of a financial management order, appointing the Public Trustee as her financial manager. The order was made on the basis that John’s mother was not capable of managing her affairs.
Shortly before her death, John’s mother consulted a solicitor regarding changing her will. She explained to the solicitor that she wished to leave the whole of her estate to John. John was instrumental in making the arrangements.
The solicitor obtained advice from a medical practitioner, regarding the mother’s capacity. The doctor found that she was not capable of managing her financial affairs and although she had some cognitive problems, concluded that she was capable of giving instructions to a solicitor to prepare a will. The solicitor went on to facilitate the execution of the new will.
When their mother dies, Jane discovers that she has been disinherited and commences court action, seeking to have her mother’s last will declared void and in the alternative, should the will be upheld, she seeks an order that she is nonetheless entitled to some provision out of her late mother’s estate.
After examining the medical evidence and the circumstances in general, the court found that their mother was elderly and suffering from mild dementia when she executed the will. The court stated that despite the existence of “suspicious” circumstances and Jane’s further allegation of undue influence, their mother did in fact have capacity to make the will and that she knew and approved of its contents.
However, the court went on to find that because Jane received nothing under the terms of the will and in circumstances where she was able to demonstrate sufficient “need”, that orders should be made to the effect that John and Jane each receive the house that they were living in and half of the rest of the estate.
