Should a will be admitted to probate where the deceased was terminally ill and in palliative care when it was executed?

Key Facts

The deceased died on 26 May 2023, aged 85, leaving a will dated 6 April 2023 made shortly before his death.

The will appointed one of the deceased’s nephews as executor and made him the primary beneficiary, with minor bequests to the deceased’s wife and a great-niece.

Another nephew of the deceased contested the will on the basis the deceased lacked testamentary capacity due to being gravely ill and in palliative care at the time of execution of the will.

The will was drafted by a solicitor and executed in the presence of interpreter, with clause-by-clause translation into Macedonian. There was no contemporaneous medical assessment of the deceased’s testamentary capacity, and the only postmortem medical opinion was found to be unreliable.

Decision and Reasoning

Testamentary Capacity

The Court was affirmatively satisfied that the deceased possessed testamentary capacity when he made the will.

In reaching this determination, the Court:

• confirmed the test for testamentary capacity is a legal test and the absence of medical evidence is not essential or determinative
• accepted the evidence of the solicitor who prepared the will and the interpreter, who testified that the deceased gave clear instructions, understood the nature and effect of the will, identified relevant beneficiaries, and had a rational plan for distribution
• attributed weight to handwritten amendments made by the deceased to the will reflecting recent instructions and family considerations, which supported that the deceased retained his mental faculties
• found that the deceased’s difficulty to comprehend his medical condition did not mean that his testamentary capacity was impugned

Extension of Time

The Court also determined that it has power under r 8.03(3)(b) of the Administration and Probate Rules and rr 2.01, 2.04 and 3.02 of the Supreme Court (General Civil Procedure) Rules 2015, to retrospectively make orders extending the time in which a person who has filed a caveat was able to file and serve grounds of objection.

Whether a Court will exercise this power depends on the circumstances of each  case. Here, an extension was granted as the delay was minimal (3 days), satisfactorily explained and caused no prejudice to any party

Key Takeaways

1. The legal standard for testamentary capacity, drawn from Banks v Goodfellow, focuses on the testator’s understanding of the assets in his estate, the claims that might be made upon them, and the effect of making a will disposing of those assets after death in the manner provided for in the will.
2. A solicitor’s contemporaneous notes and evidence, along with evidence from lay witnesses such as interpreters, can be sufficient to establish capacity, even without medical evidence in support.
3. Serious illness, palliative care and a lack of comprehension of one’s medical condition does not necessarily equate to testamentary incapacity.
4. Procedural flexibility under the probate rules can be applied where the interests of justice require and no prejudice is shown.

The decision affirms the importance of evidence provided by solicitors, supported by contemporaneous and detailed file notes in preparation and execution of wills, especially where late-life changes are made.

Our Estate Group has extensive experience navigating testamentary capacity issues and probate disputes. Contact us to discuss how we can assist with your clients’ needs.