A 96-year-old woman died leaving four different Wills, all of which appeared to be valid; however, they benefited different parties including the Church. Ordinarily, the most recent Will would be the one that was to be followed, but with an estate worth millions, three different parties each had a reason to argue why the Will benefiting them should be upheld. This recent Supreme Court decision looks at the circumstances under which a seemingly valid Will can be held to be invalid.

 

 

Shirley, who passed away in October 2020 at age 96, was described as a prolific will-maker, having made many Wills over the course of her life and frequently changing pecuniary legacies to various beneficiaries. She was single with no children and named her nephew as executor in each of her last four Wills, made in March 2016, February 2017, December 2018, and January 2019.

What Are the Requirements for a Valid Will?

The requirements for a valid Will are set out in the Wills Act.*  These include that the document must be signed by the testator (the person making the Will); it must appear that the testator intended by the signature to give effect to the Will; it must be signed in the presence of two or more witnesses who must also attest and sign the Will; and the witnesses are to sign it in the presence of the testator. In this case, on the face of the documents, each of the Wills complied with these requirements as they all were signed by Shirley and two witnesses. In fact, they were all prepared by a solicitor experienced in drafting Wills.

When a Will is properly executed and complies with these requirements, the Court will presume that the deceased had testamentary capacity to execute the Will, knew of the contents of the Will, and approved of these.

What Is Testamentary Capacity?

For a Will to be valid, it is necessary that at the time of its execution the testator had testamentary capacity. This means the person understood the nature of the act and its effects. They need to have understood the extent of the property they are disposing of in the Will, to comprehend and appreciate the claims to which they ought to give effect, and that there is no disorder of the mind that could influence their decisions – in other words, cause them to make a decision they would not have made if they had been of sound mind.

To determine whether a person had testamentary capacity, a test is generally applied called the Banks Test, which consists of four components:

1. Understanding the Act of Making a Will: The person must understand the nature of the act of making a Will and its effect.
2. Knowledge of Property: They must understand the nature of the property they are disposing of.
3. Appreciation of Claims: They must understand and appreciate the nature of the claims to their property by those who will be excluded by the Will.
4. Soundness of Mind: They should have no disorder of the mind that “poisons their affections, perverts their sense of what is right or prevents the exercise of their natural faculties.”

Importantly, a person does not have to have a mental illness to lack testamentary capacity. The Court observed that a broad range of cognitive, emotional, and mental dysfunctions might be relevant in making the assessment. On the other hand, a person might have testamentary capacity even if their cognitive function is impaired in the sense of not being as acute as it once was, because they fall within a very low percentage in the community in terms of their cognitive function.

Of significance in this case was the fact that Courts have previously held, “a radical departure from long adhered to testamentary intentions may also support an inference of incapacity, at least in the absence of adequate explanation.”

Factors Leading the Court to Question Testamentary Capacity

In this case, the Supreme Court had to determine which of Shirley’s four Wills should be admitted to probate. While all Wills appeared valid on the surface, significant concerns were raised about Shirley’s testamentary capacity at the times she made the two most recent Wills in December 2018 and January 2019.

Cognitive Decline and Memory Issues

Evidence indicated that Shirley was experiencing cognitive decline and might have been suffering from dementia. Community nurses who visited her noted signs of confusion, memory loss, and difficulties managing daily tasks. She often forgot recent events and appointments, showed confusion about time and place, and struggled with managing her finances, including paying bills and keeping financial records. There were concerns about her personal hygiene and the cleanliness of her home, indicating a decline in self-care.  All of this indicated that Shirley lacked the necessary mental capacity at the time the last two Wills were made.

Shirley also had significant vision problems, impacting her ability to read documents. Without assistance, she likely could not read the Wills herself. There was no indication that the solicitor or anyone else read the Wills to her in full, raising further doubts about her understanding and approval of the contents.

Changes in Testamentary Intentions: The Church Dispute

Shirley had a long history of leaving specific farmland to the Church in her earlier Wills. However, in her last two Wills, there was a radical shift. She redirected significant gifts of farmland previously left to the Church to a distant relative, Jim.  The onus was on Jim to prove that Shirley had capacity when making those more recent Wills that were in his favour.

The Court noted that such drastic changes without adequate explanation raised doubts about her understanding and free will.

Jim alleged that Shirley had become disillusioned with the Catholic Church, leading her to alter her longstanding testamentary intentions. Specifically, he claimed that Shirley was “most unimpressed and disturbed by cases of child abuse that had been publicised around that time within the Catholic Church.” He suggested that these concerns motivated her decision to remove the Church as a beneficiary from her will.

He also asserted that Shirley was worried the Church would sell the farmland she intended to bequeath, with the proceeds potentially going to the general funds of the Catholic Diocese of Adelaide rather than staying within local Parish. He claimed she preferred the land to remain within an intergenerational farming family, which she believed his family represented.

The court examined these allegations thoroughly and made several key conclusions:

1. Lack of Evidence Supporting Disillusionment: The court found insufficient evidence to support Jim’s claims that Shirley had become disillusioned with the Church to the extent of altering her will. Testimonies from various witnesses, including priests and long-time acquaintances, portrayed Shirley as a devout Catholic who maintained great respect for the Church and clergy until her death.
2. Consistency with Long-held Intentions: Shirley had a history of including the Church as a significant beneficiary in her wills dating back to 2001. Concerns about the Church possibly selling the land were addressed in her earlier wills by including clauses that stipulated any sale proceeds be used to establish a home for retired priests. This demonstrated her intent to benefit the Church while safeguarding her wishes.
3. Court’s View on Jim’s Involvement: The court was critical of Jim’s active involvement in the preparation and execution of the wills that significantly benefited him. His presence during crucial meetings and his efforts to discuss the will with the executor raised concerns about potential undue influence.
4. Reliability of Jim’s Testimony: The court found Jim’s evidence to be inconsistent and self-serving. His accounts of conversations with Shirley were not corroborated by other credible evidence. Notably, the court highlighted contradictions in his statements regarding Shirley’s alleged disillusionment.

The court concluded that Shirley’s relationship with the Church remained steadfast. While she may have been aware of issues within the Church, there was no compelling evidence that these concerns led her to change her testamentary plans. The significant changes in the December 2018 and January 2019 wills, which favoured Jim, were not adequately explained or supported by reliable evidence. Consequently, the court upheld the February 2018 will, reflecting Shirley’s true intentions and her enduring commitment to the Church.

Influence and Involvement of Beneficiary

Notably Jim, the main beneficiary of the later Wills, was actively involved in the preparation and execution of those Wills. He was present when Shirley gave instructions to her solicitor for the new Wills, arranged witnesses for the Will signings, and was involved in the process. It seems that Shirley did not receive independent legal advice separate from Jim’s involvement, raising concerns about undue influence.

Solicitor’s Conduct and Concerns

A further issue with which the Court was presented in deciding whether the two most recent Wills were reliable and valid concerned how her lawyer went about preparing the Wills and having Shirley sign them.

The Court found that the lawyer had failed to properly assess Shirley’s testamentary capacity, especially given her age and signs of cognitive decline.  He adopted poor record-keeping practices, so that there was no detailed written record of his meetings with her which made it difficult to verify what happened.

Against the background of Jim’s involvement, the lawyer allowed him to be present during critical meetings despite the risk that there might be a perception of undue influence by his presence given that he was to be a major beneficiary of the Will.  The lawyer also didn’t read the Will to Shirley or ensure that she understood the changes, particularly given her eyesight issues.  In fact, the December 2018 Will that Shirley signed had a “DRAFT” watermark on it, which suggested that it wasn’t intended to be the final version.

The Court’s Decision

Considering these factors, the Court found that the presumption of testamentary capacity was rebutted for the December 2018 and January 2019 Wills due to doubts about Shirley’s cognitive state and the significant changes in her dispositions without adequate explanation.

Jim had not provided sufficient evidence to prove that Shirley had the necessary capacity when executing the later Wills and the Court wasn’t satisfied that she knew and approved the contents of those Wills given the circumstances of their preparation and execution.

Accordingly the February 2018 Will was admitted to probate, as it aligned with her long-held intentions and there was no substantial evidence questioning her capacity at that time.  The Court was satisfied that Ms Shirley knew and approved the contents of the Will, and there was no evidence of undue influence or lack of understanding.

Key Takeaways

This case highlights the importance of several key principles:

• Thorough Assessment of Capacity: Particularly for elderly testators, it’s crucial to rigorously assess testamentary capacity and document the process meticulously.
• Solicitor’s Duty: Lawyers have a duty to ensure that the testator fully understands their Will, especially when significant changes are made. They must exercise caution to prevent undue influence and ensure the testator’s true intentions are reflected.
• Avoiding Undue Influence: Beneficiaries should not be involved in the drafting or execution of the Will to prevent suspicions of undue influence. Independent advice and a clear separation between the testator and beneficiaries during the Will-making process are essential.
• Consistency with Prior Intentions: Sudden and unexplained changes from long-held testamentary plans can raise valid concerns about capacity. Courts may view radical departures without adequate explanation as indicative of potential incapacity.

As trusted Adelaide estate lawyers, Websters Lawyers specialise in contesting Wills and estate disputes across South Australia.  Our firm has helped many client navigate complex estate disputes, securing fair outcomes during challenging times.  If you’re concerned about the validity of a Will or believe there are grounds to contest a Will, our experienced estate dispute lawyers are available for a free confidential telephone consultation on 8231 1363.

 

* From 1 January 2025 The Wills Act in South Australia is replaced by The Succession Act.

O’Dea v McInerney & Ors [2024] SASC 110

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2024/110.html