For a Will to be valid, the Testator (Will-maker) must have had ‘Testamentary Capacity.’ They must have understood and approved of the Will’s contents, and must have had sufficient mental capacity.
Knowledge and approval are presumed where a Will appears rational and properly-executed. This presumption is displaced where there is evidence that raises doubt as to the Testator’s testamentary intentions. In that case, the person putting forward the Will must show that the Testator:
- Knew the document was their Will;
- Understood how the Will deals with their property; and
- Gave instructions for a Will to prepared with that testamentary effect. (Astridge v Pepper  1 NSWR 542 at 548.)
If there are several Wills, parties may argue about which Will (if any) is valid.
Will Refused – Unexplained Suspicious Circumstances
The court in Agostino v Pietrobon  SASC 117 refused a 2014 will kill document that was allegedly the Testator’s last Will. Was the Will valid? The Will raised suspicions about the Testator’s capacity:
- It was very different from her long-held testamentary intentions, expressed in her 2003 Will.
- It would have disinherited her son and six grandchildren, persons naturally having a claim on Testator’s Estate. No explanation was given for disinheriting them, and for leaving her whole estate to her nephew and niece.
- The Testator’s capacity was in doubt. In 2014, she was 76 years old, she had poor mental and physical health (following a stroke), was forgetful, and had limited understanding of things said to her.
Given these suspicious circumstances, the court was not satisfied that the 2014 Will was valid.
Will Approved – Explained Circumstances – Solicitor’s Evidence
The court in Ng v Lau; In the Estate of Ken Kui Yuen Lau  NSWSC 713 considered the deceased’s 2016 Will. The Will gave his Peakhurst property to his son Gary Lau, a life estate to his second wife Mary Ng, and the residue of his Estate to Gary and Mary equally.
Mary contested the Will’s validity on the basis that:
- The deceased’s 2001 Will left the Peakhurst property to Gary and the whole residue to Mary.
- The 2016 Will was made when the deceased was too sick to travel overseas with Mary.
- In 2017, the deceased proposed to transfer the property to Mary (but did not do so).
- The deceased did not disclose his 2016 Will.
Despite these circumstances, the court was ‘well satisfied’ the deceased’s 2016 Will was valid. This finding was based primarily on the evidence of the solicitor, including their file note containing the deceased’s instructions for the 2016 Will.
What conclusions can we draw?
- Get a properly-drafted Will! Don’t use a will kit – see a solicitor!
- Review your Will every year (e.g. when doing your taxes) and at every major life event (marriage, divorce, children, etc.). Discuss any changes with your solicitor.
- You may wish discuss your testamentary intentions with your loved ones. Who will inherit? Who can make a claim? If in doubt, speak to your solicitor.
- Get a Power of Attorney and Appointment of Guardian.
With a properly-drafted and regularly-reviewed Will, your testamentary capacity and intentions are not in doubt. Suspicious circumstances and expensive legal battles can be avoided.
Seek Expert Advice
Martin Bullock Lawyers are experts in drafting Estate documents including Wills, Powers of Attorney and Appointment of Enduring Guardians.
If you need a Will, or require advice in relation to testamentary capacity issues, contact Greg Martin on (02) 9687 9322.