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Did the old man have the mental capacity to change his will? Which case won?
06 Aug | Which Case Won

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

by Joshua Crowther, Taree

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.

casea
The case for the executor
  • The changes made from the earlier will were not drastic. Including a spouse in a will was not unusual or concerning and it’s not as though any of the children had been ‘left out’.
  • The 2013 will was drafted by an experienced and competent solicitor who was aware of capacity concerns. The solicitor had known the man for many years and had drafted his earlier will.
  • Contemporaneous file notes were detailed and show that the man had testamentary capacity at the time instructions were given. The man was able to have a normal conversation, knew all his children, knew the role of the executor and what was happening with distribution of his assets. His conversation was relevant and contextual.
  • A letter from the man’s GP supports the claim that the man had the capacity to make a will in 2013. He wrote in 2015 (after the man’s death): “I am unable to be definite but my sense, and his retained insight… lead me to say he may still have retained capacity to understand implications of decisions he made regarding a will in January 2013.”
  • The case manager of the man’s nursing home witnessed the will being signed and did not raise any concerns.
  • Even if he had some issues relating to capacity in general, he was experiencing lucid intervals when giving instructions for the will, and signing the will, which means the will is valid. He knew what he was doing when he made the will.
caseb
The case for the children
  • Our father had always told both us and his spouse that our finances were separate, and that this would be reflected in his will – that is, he would make us his beneficiaries, rather than his de facto spouse.
  • While the truth of the solicitor’s file notes is not in question, there were underlying problems relating to our father’s capacity.
  • The solicitor was not aware, for example, that our father was suffering from dementia. Nor was the solicitor aware of the NSW Law Society Guidelines relating to capacity and so failed to take the suggested precautionary measures when preparing the 2013 will.
  • Notes from the nursing home show that after 2011 his condition deteriorated and he suffered from delusions and confusion. For example, he claimed that nursing staff had made him sleep in a paddock and beg for food.
  • Expert evidence (after death) suggested that while the man could understand his assets and was seemingly aware, his illness affected his higher order executive functions.
  • The legal concept of a “lucid interval” is open to doubt from a medical perspective. Functions such as attention and alertness are thought to improve during such intervals, but not necessarily memory or higher order executive function, which are essential for testamentary capacity.

So, which case won?

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Expert commentary on the court's decision

Joshua CrowtherLawyer
“The willmaker must not be affected by a mental disorder that influences the disposal of his or her assets at the time he or she is making the will. This was the hurdle for the executor of the 2013 will, due to evidence suggesting that the testator was experiencing mild to moderate dementia at the time he made that will.”
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.

For more information, please see the articles below.

Does dementia make a will invalid?

How do you choose an executor for your will? – the horror story edition

Power of Attorney and Enduring Guardianship – the horror story edition

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.
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