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Recently I went to see a performance of State Opera of SA’s production of the comedic opera Gianni Schicchi. The story revolves around the death of a rich nobleman in Florence. His family are gathered at his bedside only to discover to their horror that his will leaves everything to some monks, cutting them out entirely. Hilarity ensues as they try to find a way to gain back their inheritance, set to glorious music by Puccini.

As entertaining and hilarious as this story may be on stage, it’s not so funny when you discover that your beloved grandmother has changed her will four times in three years and the last three wills cut you and your sisters out entirely, leaving her million dollar estate to a charity and a church. This was the situation that a NSW woman found herself in recently and she had to take the matter all the way to the NSW Court of Appeal (see Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 (8 August 2017)) to prove that her grandmother, Mrs Bush, did not have sufficient capacity to execute the last three wills.

Whilst the granddaughter has ultimately been successful, it is also likely that the estate has been significantly diminished due to the legal fees involved with court proceedings.

The law is that to have the testamentary capacity necessary to make a valid will the person must:

  1. Understand that they are making a will and the effect that will have on their estate;
  2. Understand the extent of their assets;
  3. Comprehend who might have a claim on them for provision under the will;
  4. Have no disorder of the mind that might poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties; and
  5. No insane delusions that might lead to making a bequest that they would otherwise not make.

Once a suspicion of incapacity can be established, the onus shifts to those seeking to enforce the will to prove otherwise.

The case serves as a warning to solicitors and people wishing to make a valid will as to the importance of keeping detailed notes. To say the file notes in this case were sparse is an understatement. For the first of the three wills, the notes consisted of nine short lines and for the second, seven.

At trial the solicitor who drew the will could not recall his meetings with Mrs Bush but on the notes, it appeared that he made:

  • no enquiries about Mrs Bush’s family and who might be entitled to benefit under her will;
  • no notes of what her property comprised of; and
  • despite the fact that she was in her mid to late 80s, no notes of discussing the will with her, her reasons for changing her bequests or any observation of her apparent understanding of what she was doing.

The solicitor appears to have simply made a note of what Mrs Bush told him she wanted without questioning her wishes or providing any advice.

In fact, in the first will that he drafted, the executor appointed was Mrs Bush’s brother Cecil, who had died nine years earlier. Despite a month passing between giving her instructions and signing the will, Mrs Bush did not notice her mistake. In the second will, the executor was her other brother, who was terminally ill and unable to take on such a role.

In fact, Mrs Bush was in the early stages of Alzheimers Disease. Had more inquiry been made, it is likely that her confusion would have become evident.

Of course, there are times when, for good reason, a person making a will does want to leave their estate to persons other than their family. But unless that reason is properly documented, allegations of incapacity can and often, will, be raised.

In both situations, the existence of detailed notes on the solicitor’s will file would give contemporaneous evidence of the will maker’s state of mind and the reasons why they were making provision of their estate in the way they were.

What should I be watching for?

  1. Given the test for capacity that is applied by the courts, you are entitled to expect that the lawyer drafting your will (or that of a loved one) will make reasonable enquiries and properly document their instructions and the reasons as to why the will distributes the estate in the way it does, so that if a question of capacity is later raised, there are contemporaneous notes on file upon which the Court can rely as evidence.
  2. If it does not appear that this is occurring, question it, or see another lawyer.
  3. If you have concerns that a family member is suffering from mental incapacity, seek an assessment and raise those concerns directly with their doctors and their lawyer, if you know that they have one.

What appears to be hilarious in a comedic opera is often less so when it’s actually happening to your family. Ensuring you use an experienced and responsible solicitor who appropriately documents your discussions is a simple way of preventing or mitigating the chances of a family claim later.