Testamentary capacity and delusional beliefs

Making a will when one is under a false or mistaken belief about a material fact can be one factor that goes to the question of legal capacity, but there must be a higher element indicative of a mental deficiency inconsistent with testamentary capacity, and not simply a false or mistaken belief.

In Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753, the NSW Court of Appeal found that a will made in 2004 leaving the whole of an estate to a niece was valid, despite findings of mistaken belief about the conduct of a disappointed beneficiary and other evidence of a lack of capacity.

Ms Hordern died in 2014. In 2001 she had executed a will leaving the whole of her estate to her niece, Ms Richardson. In 2004 she had executed a further will revoking the 2001 will and leaving the whole of her estate to Ms Carr.

Ms Richardson alleged that the 2004 will was invalid because Ms Hordern lacked testamentary capacity when she signed it. By a cross-claim, Ms Carr sought probate of the 2004 will.

In the first instance, after a two day hearing in the Equity Division before Robb J, his Honour found that Ms Hordern lacked testamentary capacity when she executed the 2004 will.

Ms Carr successfully appealed the decision.

In upholding the appeal, the court held:

1. the trial judge erred in finding that Ms Carr did not discharge her onus of proving that the 2004 will was the will of a free and capable testator; and

2. erred in finding that a material false belief that Ms Hordern had concerning Ms Richardson was a delusion that indicated that, when Ms Hordern signed the 2004 will, she did not have the capacity to comprehend and appreciate the claims of potential beneficiaries, including in particular Ms Richardson.

The Court of Appeal discussed the significance of false beliefs held by testators or testatrices, and the circumstances in which they may indicate a lack of testamentary capacity. The starting point in any claim as to incapacity is Banks v Goodfellow (1870) LR 5 QB 549, which requires consideration of the testator’s:

1. capacity to understand the nature of the act of making a will and its effects;

2. understanding the extent of the property the subject of the will; and

3. capacity to comprehend moral claims of potential beneficiaries.

In this case, the testatrix while suffering from some ailments, including dementia and memory loss, under some mistaken beliefs, and enjoyed a glass or 2 of scotch was not so badly affected as to lack the requisite mental capacity to make a valid will.

The Court cited with approval the words of Gleeson CJ in Re Estate of Griffith when he said, “[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter”.

Findings that testamentary capacity has not been established because the deceased has laboured under what are found on analysis to be no more than mistaken beliefs would inappropriately erode that important right.

Challenging a will based upon a lack of testamentary capacity is a complex and sometimes difficult task, and legal advice must be sought before embarking on what can be a very costly and disappointing exercise.

For advice and assistance on challenging a will, contact us.

Michael Sing


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