Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 8 February 2020.
Mary passes away leaving her whole estate to her niece, Katherine under the terms of a will that she made two years before she passed.
The estate comprises of two properties in Sydney, shares and cash totalling $7 million.
Mary’s nephew, Ryan challenges the validity of Mary’s will, claiming that she lacked the capacity to make the will and that she did not “know and approve” the contents of the will.
Ryan received a one-third share of Mary’s estate under the previous will.
The Court hears that Katherine made the appointment with Mary’s lawyer to make the will and that she attended the meeting.
At the meeting, Mary instructs her lawyer to draw-up a new will, removing Ryan as a beneficiary.
The will is executed a couple of days later. The Court accepts evidence that Mary was relieved that Ryan was no longer a beneficiary.
The Court states that if a will is rational on its face and proved to have been duly executed, there is a presumption that the will-maker was mentally competent. However, if there are circumstances which raise doubt about the will-maker’s capacity, there is no such presumption and the executor must prove that the will-maker had capacity.
The Court rules that the presumption prevails and it is up to Ryan to prove that Mary lacked capacity.
Ryan alleges that Mary said she kept the will “under the dog’s bed” arguing that this was indicative of irrational thinking and an unsound mind.
The Court examines medical records evidencing Mary’s capacity at the date she made her will.
The lawyer who prepared the will also provides evidence relating to Mary’s capacity.
The Court ultimately dismisses Ryan’s claim and rules that “costs follow the event” with the effect that Ryan pays Katherine’s substantial legal costs as well as his own.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
