A will can be invalid for a number of reasons.  In this article, Helen Phelps discusses a recent decision by the Supreme Court of Western Australia that highlights when a person’s capacity may be challenged, and the consequences of that challenge.

Testamentary capacity

For a will to be valid, the person making a will must have ‘testamentary capacity’. This means that they understand:

  • the nature and effect of making a will
  • their assets
  • who might make a claim on their estate.

The case

In Monks v Monks [2019] WASC 16, the plaintiff sought a declaration that a will made by the deceased in December 2015 was invalid because the deceased didn’t have testamentary capacity when they made that will. If the declaration was successful, the deceased’s estate would be administered in accordance with the previous will. The previous will was made in August 2014.
The testator was 92 years of age when they made their 2015 will. Leading up to the preparation of this will, a number of events occurred, including that the testator had:

  • been admitted to hospital for treatment of non-alcoholic delirium
  • attended her general practitioner, Dr Mitchell, to receive an injection when, in fact, she had already received the injection from another general practitioner, Dr Flynn, in the previous month
  • undertaken two Montreal Cognitive Assessments as part of an aged care assessment, receiving scores of 10/30 and then 13/30 (where a score of 26 is considered ‘normal’).

As part of Dr Mitchell’s evidence, which she gave through an affidavit, she concluded that the deceased was unlikely to have had testamentary capacity in December 2015.
There were 21 defendants in this case, but only one (the 8th) appeared. This defendant, Mr Coombes, was the deceased’s full-time carer when the deceased made the 2015 will. He was also a beneficiary of that will.  In his evidence, he testified that the deceased had testamentary capacity. He said that her ability to identify and justify the contents of her will was evidence of this.
The deceased’s lawyer, Mr Rando, had prepared the deceased’s 2014 and 2015 wills. He observed that, at the time of the 2015 will, the deceased’s condition had deteriorated but not to the extent that she lacked mental capacity.

The decision

After considering the evidence, Master Sanderson found that the deceased lacked testamentary capacity when she signed the 2015 will. Importantly, he gave considerable weight to the evidence of the ‘seasoned’ medical practitioners. He also gave considerable weight to Mr Coombes’ evidence because he met with the deceased daily and was an experienced aged carer. Ultimately, he held that the deceased’s poor score on the Montreal Cognitive Assessments was the determining factor because the tests are ‘recognised empirical diagnostic tools’. Given the legal presumption of revocation, the effect of this finding was intestacy.

The lesson

This case highlights that lawyers should obtain medical evidence regarding a testator’s mental capacity before signing a will.

How can we help you?

If you’d like to prepare a will, or you’re the administrator of a will, our Wills & Estates team can help you. Please contact them by email or on 02 6285 8000 to arrange a meeting.