Father defends estranged Daughter’s challenge to Grandmother’s Will on grounds of lack of testamentary capacity and claim for Family Provision Order.

The client was the Executor of his mother’s Estate (“the Client“). He sought a grant of probate in relation to what he considered to be her last valid will (“the Will“).

At the time that the Will was made, the Client’s mother (“the Deceased“) intended that her Estate would go to the Client and his sister in equal shares, subject to the Client’s sister having a right to occupy the deceased’s home for the rest of her life.

The Will stated that, if either the Client or his sister died before the Deceased, their respective share under the Will would go to others. In the case of the Client, his share would go to his two sons. In the case of the sister, her share would go to two of her friends (“the Friends“).

As it turned out, the Client’s sister did pre-decease the mother. That meant that the Client would receive 50% of the Estate and the Friends became entitled to the remaining 50% of the Estate.

The Client’s estranged daughter, who had lived interstate since she was a young infant, objected to Probate of the Will being granted.

She purported to argue that the Deceased had lacked testamentary capacity at that time the Will was signed, and that a grant of Probate should be made with respect to an earlier will that the Deceased had made (“the Earlier Will“).

The effect of that argument, if it had been successful, would be that the Client would receive 45% of the Estate and, because the client’s sister had passed away, the granddaughter would receive 55% of the Estate.

In the alternative, the granddaughter sought a Family Provision Order under the Succession Act 2006 which would alter the effect of the Will in her favour.

It was not in issue that:

  • the Will was signed by the Deceased and was properly witnessed,
  • the Will was provided to the Deceased in draft before its execution,
  • the Deceased talked to her Solicitor about the terms of the Will on a number of occasions prior to executing it, including during the course of a lengthy conversation on the day it was signed,
  • the Solicitor was satisfied as to the Deceased’s capacity to execute the Will, and
  • there had not been any undue influence over the Deceased when arrangements were made for execution of the Will.

It was argued on behalf of the Client that the evidence relied upon by the granddaughter was manifestly weak.  She had, for example, not seen the Deceased for about six (6) years when she died, and the only evidence of any substance that was relied upon by her was that given by the Deceased’s second cousin (who appeared to hold a grudge of sorts against the Client).

It was also argued that wills are often made by people of advanced years, and that the test to be applied when determining questions of capacity was not whether or not a person had perfect mental balance and clarity, but whether he or she:

  • understands the nature and effect of a Will,
  • understands the nature and extent of their property,
  • comprehends and appreciates the competing claims to which they ought to give effect, and
  • is affected by any delusion that influences the disposal of their assets at the time the will is made.

So far as the application for a Family Provision Order was concerned, it was argued that:

  • the granddaughter would have real difficulty in establishing that she was eligible to make a claim under the Act because she would not be able to establish that she had been dependent upon the Deceased, and
  • even if she could do that, provision should not be made because of the limited nature of their relationship, the unlikelihood of the Deceased having an obligation or responsibility to provide for her, and the granddaughter not being able to demonstrate a real financial need.

The case was ultimately able to be settled at mediation. It was agreed, in recognition of the fact that costs would be incurred by the Estate if the matter could not be settled and it went to a final Hearing, that the granddaughter would become entitled to receive a portion of the Estate that would otherwise have gone to the Friends.

The granddaughter’s claim was otherwise dismissed, meaning the Will was admitted to Probate and the Client’s full entitlement under the Will was not affected.

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