Often requests are received to prepare a will while the client is suffering from some sort of life-threatening illness.<\/p>\n
When these circumstances arise, there are many factors to consider and it is easy for loved ones to get caught up in the moment.<\/p>\n
However, the question of the will-maker\u2019s mental capacity must be at the forefront of the minds of all interested parties and not dismissed as \u201cirrelevant\u201d, or just a ploy by the solicitor to obtain more fees.<\/p>\n
But just how far do you need to go to satisfy the courts that the will-maker had mental capacity? And more importantly, what are the consequences for the will-maker\u2019s family if mental capacity is not adequately assessed?<\/p>\n
A decision in the Queensland Supreme Court, Ruskey-Fleming v Cook<\/i> [2013] QSC 142, addresses both of these issues.<\/p>\nThe Facts<\/h3>\n
The will-maker was 91 years of age at the time of his death.<\/p>\n
Following his death, his daughter made an application to the Supreme Court to uphold a will executed by the deceased on 8 June 2007 (\u201cthe 2007 will<\/b>\u201d).<\/p>\n
The deceased\u2019s son challenged the application, claiming that the deceased did not have \u201ctestamentary capacity\u201d at the time of making the 2007 will. Instead, the son sought to propound an earlier will made by the deceased on 6 March 2000 (\u201cthe 2000 will<\/b>\u201d).<\/p>\n
The deceased\u2019s estate consisted of three properties and cash with a total approximate value of $2.6 million.<\/p>\n
Under the 2000 will, the distributions to the son and the daughter were roughly equal.<\/p>\n
Under the 2007 will, the daughter\u2019s interest increased by $207,000 and the son\u2019s interest decreased by $277,000.<\/p>\n
The court had to decide if the deceased had testamentary capacity. In considering this, the court considered the circumstances leading up to the signing of the 2007 will and in particular noted:<\/p>\n
Despite the solicitor taking precautionary steps and believing that the deceased had testamentary capacity at the time of making the 2007 will, the court decided that the deceased did not have testamentary capacity.<\/p>\n
This decision resulted in the daughter\u2019s application being dismissed and the 2000 will being upheld as the \u201clast will\u201d of the deceased.<\/p>\n
Quinn & Scattini Lawyers are highly experienced with all types of wills and estates<\/a> matters. If you are not sure about how to reduce the risk of your will being contested, or if you are concerned about your loved one\u2019s ability to make or amend a will, make sure you consult an experienced estate planning lawyer who practises exclusively in this complex area of law.<\/p>\n By doing so, you will significantly reduce the chances of a successful challenge and save yourself (and your family) time, money and heartache.<\/p>\n Get the best representation. Contact Quinn & Scattini Lawyers\u2019 experienced\u00a0will dispute lawyers<\/a>\u00a0on\u00a01800 999 529<\/a>, email\u00a0mail@rmold.newwebsite.live<\/a>\u00a0or submit an enquiry below.<\/p>\nContact Us<\/h3>\n