Contesting a Will – Testamentary Capacity

Contesting a Will – Testamentary Capacity

In the case of The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611, there was a dispute over whether the deceased had testamentary capacity at the time she created her last 3 wills.

On 22 November 2011, 12 November 2012 and 21 February 2013, the deceased made the 3 disputed wills. It was in these wills that she left her entire estate to the Cancer Council of NSW and Wee Waa Anglican Church, although there were different executors in each of the wills. Her previous wills had divided her estate equally to her closest surviving relatives.

Shortly after she created her will on June 2011, the deceased began to show symptoms of diminished cognitive function. One incident was where the deceased failed to recognise her granddaughter.

Another incident was that, she had appointed her brother Cecil as her executor in November 2011, the problem was, that he had been dead for 9 years! The deceased also seemed unaware of the money she had in her estate, even though she had deposited a total of $700,000, at various times to her ANZ bank account.

The Court was satisfied that the deceased had testamentary capacity at the time she made her last 3 wills. The Court found that the deceased’s decision to leave her estate to these 2 charities was, reasonable given her circumstances; she was a regular member of the Wee Waa Anglican Church and her husband and son had died of cancer.

The Court accepted the suggestion that the deceased had mistaken Cecil for her other brother, who was alive at the time, and that she understood it was necessary to change the executors. The Court also accepted that the deceased had been coy about her financial situation, and had only told her enduring guardian of her true financial position.

Although it may appear harsh, or unreasonable to exclude a particular beneficiary, it does not show a lack of testamentary capacity.