Abstract

This article analyses a Supreme Court of Queensland case, Conroy v Unsworth-Smith [2004] QSC 81, in which Burns & Associates Solicitors acted for the successful defendant in a three day trial. This case deals with testamentary capacity where the testatrix (deceased) suffered from Alzheimer’s dementia. Wills will be held to be invalid where the deceased did not have testamentary capacity at the time of the will.

Key Points

1. A will is only valid if the maker of the will has testamentary capacity.
2. The case of Banks v Goodfellow contains the classic legal test of testamentary capacity. In short, the will maker must be aware of:  the legal effect of making a will; the nature, value and extent of their estate; the persons who have a claim as beneficiaries; and the strengths of each beneficiary’s claims.
3. Although expert medical evidence is useful, the court determines whether a person had testamentary capacity, not the medical experts.
4. All lawyers should be alert to and test whether a will maker has testamentary capacity.
5. The person seeking to uphold the validity of the will has the onus of proving testamentary capacity.

Facts

1. The deceased had four children including the defendant and the intervener. She executed the 1988 Will in December 1988 and the 1992 Will on 24 July 1992.
2. The executor was an experienced solicitor who took instructions on, and drafted the deceased’s 1988 Will and 1992 Will.
3. The deceased died in 1998 and the Executor sought probate in ordinary form of the 1992 Will.
4. The defendant was a son of the deceased. He lodged a caveat in respect of the Executor’s application for probate in ordinary form of the 1992 Will. He challenged the validity of the 1992 Will, contending that the deceased lacked testamentary capacity at the time of making the 1992 Will as she suffered from senile dementia of Alzheimer’s type which was diagnosed in 1988.
5. The Executor filed a claim seeking a grant of probate in solemn form of the 1992 Will.
6. The intervener, a daughter and primary caregiver of the deceased, supported the Executor’s claim.
7. In September 1988, a specialist doctor diagnosed the deceased as suffering Alzheimer’s disease of moderate severity, noting that such disease would result in the deterioration of the deceased’s cognitive ability over time.
8. In December 1988, the deceased executed her 1988 Will. The deceased’s testamentary capacity when executing the 1988 Will was not in issue.
9. Under the 1988 Will. All the children were beneficiaries.
10. In mid-1992, the deceased’s general practitioner observed her cognitive deficiencies and advised that an independent medical assessment should be undertaken to assess whether the deceased had testamentary capacity. No such assessment was undertaken.
11. In August 1989 the deceased’s general practitioner informed the Executor that the deceased had been diagnosed as suffering Alzheimer’s dementia.
12. On 12 July 1990, the deceased sent a letter to the Executor informing him that she wished to change her 1988 Will by removing the defendant as a beneficiary as she believed the defendant had sided with her former husband in a matrimonial property dispute.
13. In May 1991, the deceased made a new power of attorney, but no change was made to her 1988 Will.
14. On 21 July 1992, the Plaintiff took instructions from the deceased about her will. When he did this, he read to the deceased the 1990 letter and had regard to the 1988 Will. He did not test the deceased’s testamentary capacity. Based on this attendance, and his other dealings with deceased, the Executor gave evidence at the trial that the deceased gave evidence at the trial that he was of the opinion that the deceased had testamentary capacity.
15. On 27 July 1992, the deceased executed the 1992 Will having consulted an employed solicitor in the Executor’s law practice. The employed solicitor elicited responses from the deceased rather than requiring the deceased to actively give the instructions without prompting.
16. Under the 1992 Will, the Defendant was excluded as a beneficiary and the Intervener received the largest share of the estate.
17. On 19 August 1992, a medical specialist, Dr B, examined the deceased to determine if the deceased was capable of executing an enduring power of attorney. Dr B advised that the deceased was incapable of managing her business affairs and that there were concerns about her general capacity to execute a power of attorney.
18. In 1998, the deceased passed away.
19. At the trial, medical evidence was called by the plaintiff and the defendant. The medical evidence conflicted on the opinion as to whether the deceased had testamentary capacity.
20. Dr B gave evidence that in her opinion the deceased had testamentary capacity, even though Dr B had stated in August 1992 that the deceased did not have capacity to grant an enduring power of attorney. Dr B emphasised the consistency of the deceased’s instructions to exclude the defendant as a beneficiary from her 1990 letter to 24 July 1992. The court found there was no evidence of consistency, given that the Plaintiff had consulted the deceased on numerous occasions in this period without the defendant mentioning her wish to exclude the defendant as a beneficiary. Also, Dr B relied on the Plaintiff’s report of the taking of the will instructions which gave the impression that the deceased actively initiated the will instructions. As noted above, the Court found that the deceased was responsive to the suggestions made by the Plaintiff.

Decision

1. The Supreme Court dismissed the Executor’s claim and pronounced for the full force and validity of the 1988 will.
2. In short, the Court held that the deceased did not have testamentary capacity when she executed the 1992 will.
3. In making this decision, the Court applied the classic test of testamentary capacity pronounced in Banks v Goodfellow as restated by Powell JA in Read v Carmody.
4. That test has regard to:
5. Whether the testator knew and appreciated the legal effect of making a Will
6. Whether the Executor is aware of the nature, extend and value of their property in a general way
7. Whether the person is aware of those persons who have, or may have a claim, on the estate, and the basis of and nature of such claims
8. Whether the testator is able to evaluate and discriminate the strengths of such claims
9. As a corollary to the above concepts, Powell JA stated that if at the relevant time the testator suffered from a condition of mental illness or mental disorder involving the deterioration of higher intellectual function or dementia, which affected the testator’s intelligence, cognition, thought content or orientation, then it is more probable that the testator did not have testamentary capacity.
10. Further, the Court observed that the person propounding the Will, here the executor, bore the onus of proving testamentary capacity.
11. Although doctors may express opinions as to whether a testator had testamentary capacity, it is ultimately a question for the court to decide.
12. Applying these principles, the Court held that the deceased did not have testamentary capacity when executing the Will. In making this judgement, the Court had regard to the following evidence.
13. The Executor’s opinion that the deceased was of testamentary capacity had little weight. He did not test the deceased’s testamentary capacity. He prompted the deceased’s instructions by reading the 1992 Will and referring to the 1988 Will. He was not alert to the fact that the deceased may not have testamentary capacity even though he was aware that the deceased had been diagnosed with Alzheimer’s. The executor’s expectations as to what he anticipated the deceased required coloured his views. The Executor’s diary note did not record many of the matters raised in the Executor’s oral evidence. Those matters not contained in the diary note were found by the court not to be reliable due to the passage of time and the Executor’s expectations coloured his evidence. The executor’s diary note did not record the deceased’s reason for excluding the defendant as a beneficiary.
14. The evidence of the employed solicitor was given little weight because she did not test the testamentary capacity of the deceased. Instead, she prompted the deceased.
15. Dr B’s opinion that the deceased had testamentary capacity was not accepted. Dr Berry’s opinion relied on there being consistency in the deceased’s wish to exclude the defendant as a beneficiary for the period from the 1990 letter to the making of the 1992 Will. However, the court found there was no such evidence, noting that the defendant had consulted the plaintiff on numerous occasions in the period and not mentioned the matter. Also, Dr Berry relied upon the Plaintiff’s report of the way the will instructions were give, leaving the impression that the deceased had actively initiated the instructions. As noted above, the Court found that the deceased merely responded to the suggestions made by the Plaintiff. Further, Dr Berry’s opinion was not supported by the objective evidence as follows.
16. The GP’s evidence showed that in mid-1992 he had serious concerns about the deceased’s testamentary capacity. Yet no steps were taken to obtain an independent assessment as recommended by the GP.
17. The Defendant’s evidence of the deceased’s short term memory loss and other cognitive deficiencies indicated that the deceased did not have testamentary capacity.
18. The other expert Doctors’ opinion on the likely decline of the plaintiff’s cognitive capacity was also material.