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Testamentary Capacity: Strange anomalies insufficient to persuade a Court to overturn a Will

In a recent case before the NSW Supreme Court, an adult grandchild made an application that her grandmother lacked testamentary capacity at the time she made her last three Wills dated 22 November, 2011, 12 November 2012 and 21 February, 2013.  The three Wills gifted the deceased’s whole estate equally to the Cancer Council of New South Wales and Wee Waa Anglican Church.  The only difference between the three Wills was the Executor.

The Wills contained a number of anomalies including the testator nominating her brother as Executor although he had been dead for 9 years and the testator had arranged his funeral.  The three Wills were prepared and witnessed by the same solicitor.

Medical evidence presented to the Court suggested that the testator had significantly impaired cognitive function, nevertheless, Justice Stevenson found on the balance of probabilities that the deceased had capacity at the time she made the three Wills.  In arriving at his decision the Judge noted that the Wills were simple and the dispositions rational given the deceased’s involvement with the charitable beneficiaries of the three impugned Wills.

The Judge held that the deceased’s ‘choice of the Cancer Council and her local Church was understandable. Both her and her husband and son, Ronny, had died of lung cancer and she was a regular member of the congregation at the Wee Waa Angelican Church.  Mrs Bush’s choice of these two charities certainly was not itself irrational or bespeaking of lack of cognitive function’.I

In particular, the Court found that the basis elements of testamentary capacity were met insofar as the deceased ‘understood what it was to make a will, understood the nature and extent of her property and the claims to which she ought give effect’.

For more information on Challenging Wills, call Geoff Brazel on 02 4324 7699.

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