Can the relatives be cut out of a will and everything left to the neighbours instead? Which case won?
Niece named sole beneficiary under aunt’s will
In 1996 an elderly aunt made a will, in which she left $100,000 to each of her sisters, and the rest of her estate to her niece.
The sisters pre-deceased the aunt, making the niece the sole beneficiary of the aunt’s estate, should she die.
The aunt also had one other niece and two nephews.
Aunt diagnosed with dementia
In December 2004, the aunt was admitted to hospital with a bowel obstruction.
At the time of her hospitalisation, the aunt had not seen her nieces and nephews in many years. Nor had she ever had a close relationship with them.
However, the nieces and nephews re-emerged during her hospitalisation.
While in hospital, the aunt was under the care of a geriatrician who diagnosed her with moderately severe dementia.
Guardianship Tribunal appoints guardian and financial manager for aunt
The aunt’s niece applied to the Guardianship Tribunal, seeking orders for the appointment of guardians and a financial manager for her aunt.
The Tribunal granted the application, appointing the niece as guardian, along with another niece and nephew.
The niece’s son-in-law was appointed financial manager.
In February 2004, the aunt was discharged to a nursing home against her wishes, and lost access to and control of her money.
Aunt revokes previous will and makes new will in favour of neighbours
The aunt was angry about the Guardianship Tribunal’s decision.
She was also furious with her niece, as she blamed her for losing access to her money and for moving her into a nursing home.
She also suspected her niece’s true motive was to protect her inheritance under the 1996 will, now worth over $12.5 million.
In March 2005, the aunt made a handwritten will revoking all previous wills and gave instructions to a solicitor, resulting in an informal testamentary document.
In April 2005, she made a will that was duly witnessed and revoked all prior wills.
In the new will, she named Mr and Mrs G as her beneficiaries. They were a married couple who lived next door to the aunt.
Mr G subsequently predeceased the aunt, leaving Mrs G as the sole beneficiary of the aunt’s will.
Aunt dies and argument ensues over which will should be granted probate
On 17 September 2009, at the age of 95, the aunt died.
Mrs G applied to the Supreme Court of NSW for a grant of probate in relation to the April 2005 will.
The niece defended this application, seeking a grant of probate in relation to the 1996 will. She argued that her aunt did not have testamentary capacity to revoke her 1996 will. Nor did she have testamentary capacity to make the April 2005 will in favour of Mrs G.
The principal issue for the court to decide was whether the aunt had testamentary capacity.