Key Practice Areas
Family Provision Application Comes To Fruition
Case Reference: T160944
Type of Case: Deceased Estate Litigation – Contested Probate
The Situation: *David was diagnosed with cancer in 2015. Shortly after the diagnosis, he prepared a new will naming his son Peter as the main beneficiary. In early 2016 David was twice admitted to hospital. During his second hospital admission, a lawyer attended at the hospital and took instructions from David for a new will. The changes included a reduced benefit for Peter.
The lawyer returned to her office that afternoon and prepared the draft will. The lawyer then received a phone call advising that David’s condition had deteriorated and that he would need to remain in hospital. The lawyer then emailed the draft will late that afternoon to David’s brother for David to review. David’s brother read out the new will to David. Despite David’s condition deteriorating, David’s brother believed that David understood what was being said to him.
When the lawyer arrived at the hospital to have David sign the new will, David was unable to hold the pen and had difficulty keeping his eyes open. The lawyer was then advised that David had been given morphine after his condition deteriorated. The document was never signed.
After David passed away, the executors named in the new draft document applied to the court for the document to be approved as a will. On Peter’s behalf, we argued that the document drafted while David was in hospital was not a valid will.
The Result: Multiple affidavits were presented to the court during the trial. The Supreme Court gave judgment in our client’s favour.
The judge concluded that David did not have testamentary capacity at the time of giving instructions to the lawyer, nor did he comprehend what was being said when his brother read out the newly drafted will shortly before he passed away, despite those who were there at the time arguing to the contrary.
Our client’s costs were paid by the estate.
*Names have been changed for confidentiality. However, some cases appear on public records such as court reports on the internet. As every case is different, the cases reported here cannot be taken as an indication of a similar outcome being likely in your case, and these reports are not to be taken as legal advice about your particular situation.