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

06 Aug | Which Case Won

The Facts

Testator makes new will superseding earlier will

In 2011, a man signed a will which gave his estate to his three children equally. The will instructions were taken by his long-term solicitor. The man was aged 87 at the time.

In 2013 the man signed a new will which gave his estate to his three children and his de facto spouse equally. Again, the will instructions were taken by his long-term solicitor. The man was aged 89 by this time.

Probate sought for newer will when testator dies

The man died in 2014 and his solicitor (who was appointed executor) wished to apply for Grant of Probate of the 2013 Will.

The man’s children contested the 2013 will, claiming that by the time that will was made, their father lacked testamentary capacity due to lapses in memory, downturn in capacity generally and mild delusions.

Executor and de facto spouse claim that 2013 will is valid

The executor of the will and the de facto spouse rejected the children’s claims. In their view, the man knew what he was doing when he signed the new will in 2013.

In general, if a will is rational on its face and is duly executed there is a presumption that it is valid. However, this presumption may be displaced when a doubt is raised, so in this case it was up to the executor to prove to the court that the man was of “sound disposing mind” at the time the will was signed.