In order for a person to make a will, they must possess the necessary capacity to understand its effect and appreciate the claims that can be made upon their estate. Therefore, a will made by someone suffering from any disorder of the mind or insane delusion is vulnerable to be declared invalid by a court. The Queensland Supreme Court (‘Court’) has recently decided a case involving such a will.
In Re Oliver (deceased)  QSC 264, Mr Oliver signed a will on 11 October 2011 that had been prepared by the Public Trustee (‘Will’). The Public Trustee had managed Mr Oliver’s affairs since 1990 as he suffered from severe and chronic schizophrenia most of his adult life. In fact, he had been confined to hospital from the time he was 19 years old until his death.
As he never married or had any children, Mr Oliver’s next of kin were his four siblings. However, the Will benefited Mr Oliver’s sister to the exclusion of his three other siblings (although one brother was a substitute beneficiary). After the Public Trustee applied for probate of the Will, Mr Oliver’s brother lodged a caveat against the grant being issued. Mr Oliver’s brother sought to have the Will declared invalid and, on the basis that there were no other wills in existence, be appointed as the administrator of Mr Oliver’s estate to be administered under the rules of intestacy.
In disputing the brother’s claim, the Public Trustee argued that the Will appeared on its face to be rational and it should therefore be presumed to be valid. While the Court accepted this argument despite the fact it excluded two siblings, it ultimately found in favour of Mr Oliver’s brother since the evidence of Mr Oliver’s schizophrenia sufficiently displaced the usual presumption of validity.
Critical to the Court’s decision were the following deficiencies on the part of the solicitor who prepared the Will:
The solicitor’s note did not reveal whether Mr Oliver named all four siblings (or just some) or explain why Mr Oliver only wanted to benefit his sister. It did not appear from the note that the solicitor investigated whether Mr Oliver was aware of those who had claims on his bounty in accordance with the requirements for testamentary capacity as outlined in Banks v Goodfellow (1870); and
Although the solicitor procured a doctor to complete a form at the time the Will was executed that answered questions about Mr Oliver’s testamentary capacity in line with the matters outlined in Banks v Goodfellow, the doctor’s answers were not helpful or responsive nor did the doctor state what involvement they previously had with Mr Oliver.
Because of the Public Trustee’s unsatisfactory solicitor notes and medical evidence, the Court was “not actually persuaded on the balance of probabilities that the deceased had capacity at the time he made the will” and accordingly declared the Will invalid. Following from this, the Court refused to order that the Public Trustee’s costs be paid from Mr Oliver’s estate since it “came to Court propounding a will which it could not prove because of its own default in documenting, by its solicitor and by the doctor it contacted at the time of making the will.”
Interestingly, although Mr Oliver’s brother was successful in having the Will declared invalid, the Court appointed the Public Trustee as administrator rather than him since they did not think he would rationally and impartially fulfil the duties of an administrator.
If you require legal advice about the validity of will or simply need assistance in preparing a will, please contact HPL Lawyers on (02) 9905 9500.