Often requests are received to prepare a will while the client is suffering from some sort of life-threatening illness. When these circumstances arise, there are many factors to consider and it is easy for loved ones to get caught up in the moment. However, the question of the will-maker’s mental capacity must be at the forefront of the minds of all interested parties and not dismissed as “irrelevant”, or just a ploy by the solicitor to obtain more fees.
But just how far do you need to go to satisfy the courts that the will-maker had mental capacity? And more importantly, what are the consequences for the will-maker’s family if mental capacity is not adequately assessed? A decision in the Queensland Supreme Court, Ruskey-Fleming v Cook  QSC 142, addresses both of these issues.
The will-maker was 91 years of age at the time of his death.
Following his death, his daughter made an application to the Supreme Court to uphold a will executed by the deceased on 8 June 2007 (“the 2007 will”).
The deceased’s son challenged the application, claiming that the deceased did not have “testamentary capacity” at the time of making the 2007 will. Instead, the son sought to propound an earlier will made by the deceased on 6 March 2000 (“the 2000 will”).
The deceased’s estate consisted of three properties and cash with a total approximate value of $2.6 million.
Under the 2000 will, the distributions to the son and the daughter were roughly equal.
Under the 2007 will, the daughter’s interest increased by $207,000 and the son’s interest decreased by $277,000.
The court had to decide if the deceased had testamentary capacity. In considering this, the court considered the circumstances leading up to the signing of the 2007 will and in particular noted:
- The lawyer who prepared the 2007 will had no prior involvement or professional relationship with the deceased and did not obtain expert medical evidence as to the deceased’s testamentary capacity at the time of signing the 2007 will.
- The lawyer took precautionary steps and performed his own capacity tests on the deceased and made “contemporaneous, comprehensive” diary notes. In particular, those notes concluded (in the lawyer’s opinion) that the deceased had testamentary capacity.
- There was evidence that the daughter was involved in giving instructions for the 2007 will. In particular, there was evidence to suggest that the 2007 will was what the daughter wanted.
- Medical documents by treating doctors indicated a clear lack of capacity and ongoing lapses of memory by the deceased.
Despite the solicitor taking precautionary steps and believing that the deceased had testamentary capacity at the time of making the 2007 will, the court decided that the deceased did not have testamentary capacity.
This decision resulted in the daughter’s application being dismissed and the 2000 will being upheld as the “last will” of the deceased.
Judgment mentioned in this post
Title: Ruskey-Fleming v Cook  QSC 142
Date: 3 June 2013
Court: Supreme Court of Queensland
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