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In any capacity

Succession Law News | July 2017

The NSW Supreme Court in Homersham -v- Carr [2017] was required to determine whether the late Beryl Lee Hordern (the “Deceased”) had testatmentary capacity to prepare and execute her Will at the time that it was signed in 2004. It was alleged in this case that at that time the Deceased was suffering from Alzheimer’s which was causing substantial cognitive impairment and delusions.

To assess the Deceased’s testamentary capacity the court applied a test from the judgment in Banks -v- Goodfellow [1870] LR 5 QB which includes 5 components relating to a testator’s cognitive understanding. Under this test, the testator must have:

  1. An understanding of the nature of the act and its effect;
  2. An understanding of the extent of the property of which they are disposing;
  3. An ability to comprehend and appreciate the claims that to which they ought to give effect;
  4. No disorder of the mind poisoning their affections, perverting their sense of right, or preventing the exercise of their natural faculties; and
  5. No insane delusion influencing their will in disposing of their property.  

In satisfying these components the court must determine that there was no mental disorder or insane delusion present which would have unduly influenced the actions of the Deceased to produce a decision that, had his or her mind been sound, he or she would not otherwise have made.

In this case, the parties agreed that if the Deceased was found to have testamentary capacity at the time of the 2004 will, then probate of her estate should be granted to the plaintiff. Alternatively, if the court found the 2004 will to be invalid, then the plaintiff should be granted probate of the deceased’s estate in respect of the Deceased’s earlier will from 2001. 

However, the court was not satisfied that the Deceased’s 2004 will was that of a ‘free and capable testator’ and the plaintiff was granted administration of the estate with a will annexed in solemn form, being the Deceased’s earlier will executed in 2001. 

This case highlights how important the consideration of a mental illness such a Alzheimer’s can be to the execution of a person’s final wishes.

Forum Law provides advice and assistance in all aspects of preparation of a will and disputing a will or upholding a will. Forum Laws’ solicitors are well qualified and have extensive experience in the law of wills, estates and succession law. Give us a call for an obligation free chat for up to 30 minutes on the phone or make a time to visit us in Leichhardt on 02 9560 3388.

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