Unsure if you have Testamentary Capacity?

Banks v Goodfellow (1870) LR 5 QB 549 is the leading case for establishing the test of testamentary capacity. The test is based on the four questions:

·         Does the willmaker understand the nature and effect of making a will?

·         Does the willmaker know the nature and extent of his or her assets?

·         Does the willmaker comprehend, understand and appreciate the claims to which may be brought?

·         Is the willmaker affected by a mental disorder influencing the disposal of his or her assets?

Ryan v Dalton; Estate of Ryan [ 2017 ] NSWSC 1007 is a more recent case which reiterates the importance for solicitors to be careful when preparing Wills for clients, where capacity is in doubt.

Mr Ryan signed a Will in 2011. He was 87 years old at the time, and gave instructions to his long-term solicitor to prepare a Will which divided his estate equally between his three children.

In 2013, Mr Ryan gave instructions again to his long-term solicitor to update his Will, to divide his estate equally between his three children and de facto spouse, even though it was always agreed between Mr Ryan and his de facto partner that their financial affairs remained separate and neither would have recourse to either persons estate.

Mr Ryan died in 2014 at the age of 90, and when the application for Probate was being made, it was intended to apply for the grant of Probate of the 2013 Will.

 

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