In order for a Will to be valid the maker of the Will (the testator) must have the proper mental (testamentary) capacity i.e. they must, amongst other things, understand the nature and effect of the Will and the extent of their property. It is possible for a relative to challenge the validity of a Will after the death of the testator and allege that they did not have sufficient mental capacity thus invalidating the Will.
In the recent case of Aleta Gooley v Brett Gooley [2021] NSWSC 56 the Court observed that a solicitor taking instructions where mental capacity is potentially in doubt has a duty to take particular care to be reasonably satisfied as to the testator’s testamentary capacity.
In that case the circumstances surrounding the making of the Will were very suspicious. The deceased was very ill in hospital. His children took him to a solicitor from the hospital just to make a new Will even though he had already made seven in the last few years. The solicitor failed to enquire about the testator’s condition or why he was on day leave or to test his mental capacity.
The Court found that Will to be invalid on the basis that the deceased lacked testamentary capacity. The lessons here are to never assume that a Will we be regarded as valid especially in the case of elderly testators and where relatives force a vulnerable person to make a Will in a rush, it may not end well.
April 2021