Did the old man have the mental capacity to change his will? Which case won?

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.

The willmaker understands the nature and effect of making a will. This is usually easy to prove because most people understand the concept of a will.
The willmaker must know the nature and extent of their assets. This would generally include an awareness and at least a broad outline of what the person’s estate consists of. This test can be lower in circumstances of non-complex assets, but should include details of any real estate, bank account balances, shares and RAD (bond for a nursing home). In this case it was found that the solicitor should have asked open-ended questions to verify Mr Ryan’s awareness of his assets.
The willmaker must comprehend and appreciate the claims to which they ought to give effect. This includes the persons who could claim against an estate and the moral obligations owed by the willmaker to such persons. In this case, this issue was not problematic, as Mr Ryan appeared to understand that his children and his de facto spouse were the persons who could claim against his estate.
The willmaker must not beaffected by a mental disorder that influences the disposal of his or her assets at the time he or she is making the will. This category of the test was the hurdle for the executor of the 2013 will due to evidence suggesting that Mr Ryan was experiencing mild to moderate dementia at the time he made that will.

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.

Nursing home notes mentioned some delusions held by Mr Ryan. For example, he claimed to his spouse that the staff made him sleep in a paddock, that he had to beg for food and that he sometimes wore pyjamas over his daytime clothes.
When getting Mr Ryan to sign the will, the solicitor read the draft to him but did not, on evidence, seek confirmation of his instructions by asking non-leading questions, for example: “Remind me Frank, what did you want to do in your will?” Reading a will and relying upon implied agreement (the client nodding his head) is not good enough to show agreement or awareness.
The solicitor was unaware of Mr Ryan’s dementia. She never asked questions of him, or of the nursing home staff, that would determine whether he had dementia.
The solicitor adopted a common sense approach to taking the will instructions, but she did not identify the relevant points in the NSW Law Society Guidelines for taking will instructions from a person residing in a nursing home.
There was expert evidence to the effect that it was very unlikely Mr Ryan retained testamentary capacity. Despite a Mini Mental State Examination (MMSE) result showing that he scored 28/30 in about July 2010, the expert stated that such a MMSE score did not assess impaired executive function, which is a feature of vascular dementia (which Mr Ryan had).
There was no explanation from Mr Ryan as to why he was changing his will from the previous instructions and the generally agreed position that he and his de facto spouse had agreed to keep their finances separate.

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.