Testamentary Capacity

Posted by Reg Biddulph | Oct 27, 2017 | 0 Comments

(Last Updated On: November 3, 2017)

Does a ‘mild cognitive disorder' make a will invalid?

This question arose in the case of Tandy v Glaskin that was determined by the Supreme Court of Western Australia on the 25th October 2017.

The Facts

Frank Cox married Eunice Cox in 1990.

It was the second marriage for both of them. Frank had two adult children from his first marriage, Eunice had six.They lived, it seems, happily ever after. Eunice died in 2014, Frank in 2015.In 2009, Frank was aged 83. He had medical issues. In September that year he was reviewed by a geriatrician. He was diagnosed with a ‘mild cognitive disorder” (Alzheimer's). He scored 20 out of a possible 30 on a Mini Mental Examination Test.Following this diagnosis, Frank and Eunice decided to see a solicitor to prepare wills. They attended upon a solicitor within a week. They saw the solicitor together. At that time the solicitor had about 6 years experience. He had only prepared “about 12 to 15” wills up to that time. He had not seen the geriatrician's report. There was nothing that led him to suspect that Frank might not have capacity. The wills themselves were perfectly straightforward. Frank left his estate to Eunice (if she survived him) and to divide everything between all their children if they did not. Eunice's will was the same. There were, three slight differences between their wills: Frank appointed a different substitute executor (his daughter), gave a gift of $5,000 to a grandchild and had different burial directions than Eunice.

In the years following the making of the wills, Frank's medical condition continued to deteriorate (as is the nature of Alzheimer's disease. After Eunice died he went into a nursing home.Although Frank and Eunice had enjoyed an happy second marriage, tensions had arisen between their respective groups of children. Their were proceedings in the State Administrative Tribunal and attempts to manage Frank's affairs through an Enduring Power of Attorney. If Frank was found not to have capacity when he made his will, then he would have died intestate and his estate would be divided between his two children (there being no earlier will). That, of course would have been a good result for his two children but not so much for Eunice's six children, particularly since Eunice had left all her estate to Frank. After Frank's death, his daughter lodged a caveat at the probate office to stop a grant of probate being made. The Executor named in Frank's will (interestingly one of Eunice's children) had to commence proceedings to ‘prove the will in solemn form'.

Relevant Law

Order 73 rule 15 of the Supreme Court Rules provides for a specific procedure whereby a person can object to probate of a will being granted by indicating that they only intend to cross examine witnesses (as distinct from calling their own witnesses). If they adopt this procedure (and the court pronounces for the validity of the will) then they will not be liable to pay the estates costs of proving the will. Although the solicitor who prepared the will had no recollection of his meeting with Mr & Mrs Cox, he had seem them both for forty minutes. He had prepared drafts that he had posted to them. When they cam back (two days later) to sign the wills, he had read them over to them before they both signed them. The geriatrician gave evidence that the poor result on the MME test would not preclude Frank from having the necessary capacity to make a will.

The Decision

The court found that Frank did have capacity. Although the objector did not have to pay the estates costs, she nevertheless had to pay her own.

About the Author

Reg Biddulph

Graduated in law from the University of Western Australia in 1987. He has been a partner at Biddulph & Turley since 1991. He is a member of the Society of Trusts and Estate practitioners and is professionally experienced in all areas of deceased estates. In September 2016 Reg was recognised ...


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