Testator’s Soundness of mind, memory and understanding

By Heirsandsuccesses on February 14, 2025

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 Kunc J discussed issues related to testamentary capacity that intrinsically depend on each case’s specifics. No universal guideline or method can address all situations to eliminate the chance of disputes. Nevertheless, the effort involved in evaluating capacity when receiving Will instructions and completing the Will (including obtaining a client assessment if needed) is minimal compared to the expenses, delays, and emotional turmoil litigation can cause following the testator’s death. With this in mind, and without undermining the necessity for solicitors to be familiar with the guidelines, recent court experiences suggest that establishing some basic principles (which will naturally be somewhat arbitrary) may prove beneficial.

It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:

(1) The client should always be interviewed alone. If an interpreter is required, ideally, the interpreter should not be a family member or proposed beneficiary.
(2) A solicitor should always consider the capacity and the possibility of undue influence, if only to dismiss it in most cases.
(3) instructions should be sought using non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.
(4) In case of anyone:
- (a) over 70;
- (b) being cared for by someone;
- (c) who resides in a nursing home or similar facility or
- (d) about whom, for any other reason, the solicitor might have a concern about capacity,

The solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity, including as a result of any diagnosis, behaviour, medication, or the like. Again, full file notes should be kept recording the information the solicitor obtained and from whom in answer to such inquiries.

(5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. Simply reading the provisions to a client and seeking assent should be avoided.

Kunc J emphasised the foregoing was offered only as suggested basic precautions, which may identify problems that must be addressed. The solicitor’s evidence will be critical in many cases before the Court. For that reason, solicitors must make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.

Background

White v White [2024] TASSC 69 concerns a dispute over the validity of Edward Valentine White’s (the deceased) final Will, dated December 14, 2021 (the 2021 Will). The deceased passed away on April 14, 2023, at 95.

Robert Edward White (the plaintiff) is the deceased’s son. He argues that the deceased lacked the mental capacity to make the 2021 Will and did not fully understand its contents. Instead, the plaintiff wants the Court to recognise an earlier Will from 2016 (the 2016 Will) as the deceased’s valid last testament. Interestingly, the plaintiff was named executor in the 2016 and 2021 Wills.

Although there are five defendants in the case, only one of the deceased’s widows, Ka Helen White, has actively participated in the proceedings. She insists the 2021 Will is valid. Ka was the deceased’s second wife; they had no children together, though both had children from prior marriages. The deceased had two sons and a daughter, though one son predeceased him. Ka has two sons, making them the deceased’s stepsons.

The other defendants are the deceased’s daughter, Kathryn Ann Wylie; the plaintiff’s wife, Dimity Anne White (previously married to another defendant); and Ka’s two sons, who were beneficiaries in the 2016 and 2021 Will.

By December 2021, the deceased’s health was declining. He had dementia, Parkinsonism, osteoarthritis, and a heart condition. On December 14, he met with Graeme Bradfield (the Solicitor), an experienced solicitor at Tierney Law. The plaintiff and Ka accompanied him. Over an hour and 45 minutes, the deceased executed several legal documents: an enduring power of attorney for the plaintiff and Ka, a transfer of his home in Lindisfarne to joint ownership with Ka, and the 2021 Will.

The 2021 Will contain the following provisions:
Ka was to receive any car she regularly used, along with household furniture and appliances.
Ka would inherit one-quarter of the residuary estate.
Another quarter would go to Ka’s sons, split equally.
The plaintiff and the deceased’s daughter, Kathryn, would receive a quarter of the estate.

Significantly, the 2021 Will marked a departure from the deceased’s previous Wills in 2007, 2012, and 2016, none of which provided for Ka’s sons. The plaintiff does not allege fraud or undue influence. Still, he does question the sudden inclusion of his stepbrothers in the 2021 Will, which he believes casts doubt on the deceased’s mental capacity and understanding of the Will.

The deceased’s 2016 Will, by contrast, handled his estate differently:

The plaintiff was still named executor.
The deceased granted Ka a lifetime right to live in the Lindisfarne home, provided she maintained it. Upon her death, the house would pass in equal shares to the plaintiff’s wife, the deceased’s daughter, and his late son (or their survivors).
Additionally, the deceased gave Ka a lifetime right to reside on another property at Port Arthur, under the same conditions, to pass in equal shares to the deceased’s daughter and his late son (or their survivors) upon her death.
The deceased left Ka a car and household goods. The remainder of the estate was split equally between Ka and the deceased’s three children.

At the time, the deceased deemed it unwise to leave the plaintiff any direct inheritance due to his financial troubles. His business had collapsed, and the liquidation made it risky for the plaintiff to receive assets. Instead, the deceased made the plaintiff’s wife a beneficiary.

Deceased’s statement of wishes

Between 2016 and 2021, the deceased signed two documents expressing his wishes, though they were not legally binding. The first, dated November 14, 2019, outlined how certain loans owed might be repaid and divided between the plaintiff and Kathryn. It also stated that Ka should inherit the Lindisfarne house, a shack at Port Arthur, and a car. At the same time, the plaintiff and Kathryn should split the remaining assets between them. The second memorandum, dated August 28, 2020, contained nearly identical terms. Notably, neither document mentioned leaving anything to Ka’s sons except for a reference to one of them as a debtor.

One of the properties listed in these memoranda, the shack at Carnarvon Bay, was 1 McCormack Drive, Port Arthur. However, the deceased had sold this property in 2016, years before signing the memorandum. The plaintiff later admitted that he had drafted both documents for his father to sign.

A second property in Port Arthur, located on Bellettes Road, also came into question. The deceased had purchased the land and placed a mobile home on it, but Ka testified that it was solely in her name. However, the plaintiff’s counsel didn’t cross-examine Ka.

Deceased’s Capacity

Now, the Court must determine whether the 2021 Will stands or whether the plaintiff has made a case to revert to the 2016 Will.

Banks v Goodfellow (1870) LR 5 QB 549 provides the fundamental criteria for testamentary capacity. In that case, Cockburn CJ stated that, for a testator to execute a Will validly, The test in Banks requires that a person making a Will to:

Understand the nature and effect of the document;
Understand the nature and extent of the assets involved;
Understand the people who may have “moral claims” on the estate and
Not be suffering from a “disorder of the mind [that] poisons the Testator’s affections, perverts his sense of right or prevents the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Timbury v Coffee (1941) 66 CLR 277 (Timbury) reached a similar conclusion referencing Hood J in In the Will of Wilson (1897) 23 VLR 197 at 199, Dixon J noted at 283:

“Before a will can be upheld, it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner. “

Delusions may encompass a value judgment if the evaluation is so absurd that it lacks credibility: Re Estate of Griffith; Easter v Griffiths (1995) 217 ALR 284 (Griffith) at 291, as noted by Gleeson CJ, with Handley JA agreeing; ‘an insane delusion,’ has been further clarified as a persistent and unyielding false belief that somebody cannot convince the testator to relinquish: Worth v Clasohm (1952) 86 CLR 439 (Worth) at 449; Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Hodges) at 706.

The critical aspect is the absence of reasoning – simply holding a false or incorrect belief does not suffice to conclude that a testator lacked testamentary capacity: Carr v Homersham [2018] NSWCA 65 (Carr) at [14].

Similarly, the person seeking to prove a Will does not need to demonstrate that the testator actively weighed all potential claims on their estate. It is sufficient to show that the testator could do so (Starr v Miller [2021] NSWSC 426 at [421]-[422]).

Medical Evidence

Two doctors who had treated the deceased in his final years provided affidavit evidence, which the plaintiff’s counsel cross-examined. One was geriatrician Dr. David Dunbabin, and the other was general practitioner Dr. Lachlan Fieldhouse.

Dr Dunbabin assessed the deceased in October 2021 to assist with managing his medical conditions but did not evaluate his testamentary capacity. In August 2023, he prepared a report on the deceased’s mental capacity at the request of the plaintiff’s solicitors. He noted that retrospective capacity assessments are inherently unreliable, as they require the ability to ask the deceased specific legal questions at the relevant time.

In his report, Dr Dunbabin acknowledged that the deceased likely retained a reasonable understanding of his assets and the general effect of his Will due to his intact long-term memory. However, he doubts whether the deceased could fully comprehend and evaluate the claims of his beneficiaries, particularly given his poor short-term memory and concentration difficulties. Although Dr Dunbabin found no evidence of delusions or hallucinations when he examined the deceased in October 2021, he could not rule out the possibility that such impairments had developed by December 2021, when the deceased executed the Will. He concluded that the deceased may not have had testamentary capacity at that time, particularly given the significant changes in asset distribution compared to previous Wills.

Dr Dunbabin also addressed the deceased’s capacity in other areas, such as executing an enduring power of attorney and making financial decisions. He emphasised that he based his conclusions on a retrospective assessment of an older man with dementia and a severe cardiac condition, both of which could have fluctuated in their effects on his cognitive abilities.

In his oral testimony, Dr Dunbabin explained that the deceased’s heart condition could cause extreme fatigue, potentially leading to confusion or drowsiness, particularly when making multiple decisions in a single appointment. He agreed that executing three legal documents in one sitting could have been mentally exhausting for the deceased. However, he had previously advised in October 2021 that the deceased could sign an enduring power of attorney, and he remained satisfied that he could do so at that time.

Regarding transferring the deceased’s house into joint names with his widow, Dr Dunbabin acknowledged that this decision aligned with the deceased’s previously stated wishes. He agreed that the transfer was not a significant change, especially since there were no tax or stamp duty consequences.

When asked whether the deceased may have been mentally competent on the day he executed the 2021 Will, Dr Dunbabin stated that he could not comment on the cognitive function at that moment. However, he reiterated that the deceased had cognitive impairment and short-term memory issues, which could have fluctuated day to day and even within the same day, depending on his overall physical health.

Dr. Fieldhouse’s evidence did not add much beyond what Dr. Dunbabin had already covered. He worked at a medical practice the deceased had attended for years. He first saw him on January 14 2022, a month after executing the 2021 Will. His notes from that visit stated that the deceased had nil capacity, was confused by complex discussions, and could only communicate superficially. While this observation pertained to a single day, it reinforced the importance of carefully assessing the deceased’s cognitive state when he executed the 2021 Will.

Medical records from the Royal Hobart Hospital documented an incident on October 28 2022, where the deceased became agitated and acutely confused, failing to recognise his wife and mistaking her for his mother. He also became aggressive, leading to his admission to hospital. However, this episode occurred more than ten months after making the 2021 Will. It appeared to be an isolated case of acute confusion.

Execution of the Will

On December 14, 2021, the deceased executed his Will with three witnesses present: the plaintiff, the defendant, and the Solicitor.

The Solicitor, a legal practitioner with 38 years of experience, had extensive experience drafting Wills and was aware of the importance of assessing testamentary capacity. He had previously refused to proceed with Wills in cases where capacity was in doubt without obtaining medical assessments. He had also known the deceased and the plaintiff for many years, as his family had been customers of their business.

According to the Solicitor, on December 8, 2021, the plaintiff called him to arrange an appointment for the deceased to sign a power of attorney and make a new Will. The plaintiff allegedly provided instructions regarding the Will’s provisions. However, the plaintiff denied this.

On December 14, 2021, the plaintiff and defendant accompanied the deceased to Tierney Law. The Solicitor had already drafted a Will based on his notes, which outlined specific gifts: the defendant would inherit the Lindisfarne property and one-quarter of the estate’s residue, dividing the remaining three-quarters between the plaintiff and the second defendant.

The Solicitor produced a handwritten note detailing instructions he claimed to have received from the plaintiff. The note mentioned a meeting with Dr. Dunbabin, the preparation of a power of attorney for the defendant, an outline of the testator’s assets and the proposed Will’s provisions. Although The Solicitor and the plaintiff provided conflicting accounts, the Court found The Solicitor’s testimony credible. It concluded that the plaintiff had provided the instructions—though he may have since forgotten to do so.

The Solicitor recalled that the testator was with him from 11:15 AM to 1:00 PM when he signed the power of attorney, the house transfer, a statutory declaration for stamp duty, and the 2021 will.

Affidavit evidence

In his first affidavit (April 2024), The Solicitor recounted these events from memory. In May 2024, he found additional notes that he initially believed were made when the testator gave instructions for the Will. However, during the trial, he admitted uncertainty about whether those notes were from 2021 or a later meeting in April 2023. As their origin was unclear, the Court disregarded them.

According to the Solicitor’s first affidavit and oral evidence, the events of December 14, 2021, unfolded as follows:

The plaintiff and defendant brought the deceased to Mr Bradfield’s office; he needed to assess the deceased’s capacity privately. The plaintiff commented that the deceased was “in good spirits, knew what he wanted, and was fit to give instructions,” which heightened Mr Bradfield’s awareness.
The Solicitor first spoke with the deceased and the defendant without the plaintiff.
He then spoke to the deceased alone. They had a lengthy discussion on various topics, including the Solicitor’s mother, the plaintiff’s business failure, and retirement. Based on this conversation, the solicitor felt no further capacity assessment was necessary.
The plaintiff and defendant returned, and the deceased signed a power of attorney, with the plaintiff and defendant accepting their roles as attorneys.
The Solicitor then privately discussed the Will with the deceased, who provided details about his assets and stated that he wanted the defendant to receive the Lindisfarne property. Mr Bradfield outlined different ways to achieve this, including transferring the property before death to avoid stamp duty. The deceased agreed to proceed with the transfer.
The Solicitor’s assistant prepared the necessary transfer documents, which the deceased signed.
The Solicitor then revisited the Wills contents. Initially, the deceased planned to divide the estate as 25% to the defendant and 75% between the plaintiff and the second defendant.
The deceased inquired whether his stepchildren, Brendon and Craig Cole, could claim against his estate. The Solicitor advised that legislative changes allowed stepchildren to make claims. Concerned about potential disputes, the deceased included them in the Will to avoid challenges. After discussion, the deceased instructed that the estate be divided equally into four parts: 25% to the defendant, 25% to her children, 25% to the plaintiff, and 25% to the second defendant.
The Solicitor hand-amended the draft Will before his assistant prepared a final version, which the deceased executed, witnessed by Mr Bradfield and his receptionist.

In his first affidavit, the Solicitor recalled discussing including the stepchildren in the Will. The deceased agreed they should receive a share due to their relationship with him. Still, they insisted that the plaintiff and second defendant receive equal portions.

During cross-examination, the Solicitor’s assertion that the deceased was lucid remained unshaken. However, Blow CJ criticised some aspects of his conduct:

Tierney Law incorrectly formatted the power of attorney form, missing the deceased’s name in a key section. Still, the Solicitor failed to notice the omission.
Similarly, the Solicitor’s advice about stepchildren’s inheritance rights was inaccurate. Stepchildren have been allowed to claim under the Testator’s Family Maintenance Act since 1957. However, this has not been due to a recent legislative change.
The revised version contains uncorrected numbering noticed before execution.
He failed to document his assessment of the testator’s capacity, comprehension of the Will, or whether the deceased read it aloud. The notes found in May 2024 did not clarify these points.
In his first affidavit, he did not mention whether he had read the Will to the deceased. However, he later included this in a second affidavit.

The defendant also provided affidavit evidence but was not cross-examined. She recalled the deceased and the Solicitor discussing their past dealings. While the defendant did not comment on the deceased’s anything mental state that day, she stated that around that time, he remained mentally sharp in activities such as puzzles, card games, following news and politics, and reading.

The plaintiff only became aware of the 2021 Will’s contents after the testator’s death and was surprised by the gift to the stepchildren. Significantly, he did not question the deceased’s capacity until learning of this bequest submitting that the deceased may not have understood or approved the Will’s contents.

Affidavits from the plaintiff, his wife (the third defendant), and his sister (the second defendant) described the testator’s cognitive decline. Still, they did not provide insight into his mental state when executing the 2021 Will.

For a testator to have testamentary capacity, they must understand that they are making a Will, be aware of their assets and disposing of them, and recognise the claims they should consider. The most challenging aspect is understanding and accounting for the claims. In this case, the testator’s relationship with his two stepsons requires careful examination.

The deceased and the defendant began living together in 1973 and married on November 20 1992. They had been together for 48 years when he executed the 2021 will. At the start of their cohabitation, the defendant’s two sons were approximately 10 and 6 years old and part of the household. In contrast, the deceased’s three children were not. While the deceased maintained good relationships with his biological children, he spent more time with his stepchildren during their formative years. Similarly, the stepchildren maintained strong ties with their biological father but lived primarily with their mother and the deceased.

As adults, the deceased and his stepchildren regarded each other as family members, much like his relationship with his biological children. The deceased’s main assets included the Lindisfarne property and approximately $3.4 million spread across four bank accounts with the National Australia Bank. Given the long-standing relationship between the deceased and his stepchildren, the decision to leave each of them 12.5% of his estate does not, in itself, indicate cognitive impairment.

Courts decision

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J outlined best practices for solicitors drafting wills for elderly testators where concerns about capacity or undue influence might arise. These include interviewing the client alone, considering capacity in every case, using open-ended questions, keeping thorough records, and repeating the assessment when presenting the draft Will.

The Solicitor’s evidence demonstrates that the deceased understood he was making a Will, was aware of his key assets, recognised his wife, biological children, and stepchildren, and comprehended the distribution of his estate under the terms of the Will. While he had previously not left his wife an absolute interest in the Lindisfarne property, he had decided to do so in memoranda from 2019 to 2020. Thus, transferring the property to her as a surviving joint tenant was logical.

The deceased treated his two surviving biological children equally, consistent with his previous intentions. The only unexpected provision was the gift to his stepchildren. However, the decision was reasonable considering the size of his estate, the relatively small portion allocated to them, and his nearly five-decade relationship with them. His stated motive to prevent disputes is logical and not irrational.

While the deceased had cognitive impairments and fluctuating capacity, and the decision to include his stepchildren in his Will was unprecedented, these factors warranted scrutiny but did not prove incapacity. The defendant’s evidential burden was demonstrating the testator’s capacity when executing the 2021 Will. Based on Mr. Bradfield’s testimony, the Court was satisfied on the balance of probabilities that the deceased had testamentary capacity.

The deceased’s Will was valid, creating a presumption of capacity; it is a rebuttable presumption if there were reasons to suspect the testator did not understand or approve of the Will’s contents. However, no such suspicion arises considering The Solicitor’s evidence and the testator’s long-standing relationship with his stepchildren. The testator privately instructed the Solicitor to leave small portions of a large estate to two stepchildren previously unprovided for. There is nothing unusual about this. Based on the Solicitor’s evidence, the Court was satisfied that the testator knew and approved of Will’s contents.

Accordingly, the Court dismissed the plaintiff’s claim, and the defendant prevailed. While no party made a formal counterclaim, the plaintiff did not object on procedural grounds. Therefore, the Court granted the plaintiff probate of the 2021 Will in solemn form.

The Court pronounces Edward Valentine White’s last Will, dated December 14, 2021, as valid and orders a grant of probate subject to standard formalities.

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