A "free and capable testator" - when capacity is questioned
Sep 21, 2017The recent case of Ryan v Dalton highlights the role of testamentary capacity when making a will. The case emphasised that there is a burden on the proponent of the will to demonstrate to the court that the last will created was made by a “free and capable” testator.
Background facts
Francis James Ryan died in July 2014 at the age of 90. He was a father to three surviving children and was in a de facto relationship with Ms Deidre Molloy. Evidence was given that it was always understood between the deceased and Ms Molloy that they would remain financially independent, and not make any claim on each other's estate.
Prior to his death, he had made the following wills:
- 1 June 2011 - appointing his 3 children as the executors and dividing the property between them in equal shares, with no gift made to Ms Molloy in accordance with their earlier agreement to remain financially independent. At the time, he was experiencing some health problems, but nothing of significant alarm.
- 24 January 2013 - appointing his solicitor as executor, and dividing the property between his 3 children and Ms Molloy.
The issue was whether the deceased was a “free and capable testator” at the time of his 2013 will, prior to which he had been diagnosed with early onset dementia. The court held that despite the evidence provided by his solicitor, his solicitor failed to satisfy the standard that Ryan was a “free and capable testator” and thus probate in solemn form of the 2011 was granted to his 3 children, thereby excluding his de facto from receiving anything from the estate.
What needed to be proven
It was necessary to establish that Ryan had testamentary capacity beyond a reasonable doubt. This was in doubt, because of 7 factors:
- At the time of his will, there were already concerns about his mental state.
- At the 2013 meeting with his solicitor, he merely nodded his head in response to questions posed.
- The solicitor was unaware of his dementia, and did not ask any questions to assess his capacity.
- The solicitor did not act in accordance with the standard guidelines given to lawyers in order to assess a client's testamentary capacity.
- Expert evidence concluded that it was unlikely that he had testamentary capacity at the time of the 2013 Will.
- The deceased never explained the reason why he wanted to depart from his earlier agreement to keep his finances separate from Molloy..
- There was evidence presented to the Court that supported increasing cognitive issues.
Best practice - assessing capacity
Recommendations have been made by both the New South Wales Legislative Council and Australian Law Reform Commission (ALRC) to “develop best practice guidelines for legal practitioners in relation to the preparation and execution of wills", such as:
- The client should always be interviewed alone
- A solicitor should always consider capacity and the possibility of undue influence
- In all cases instructions should be sought by non-leading questions
- In case of anyone
- over 70;
- being cared for by someone;
- who resides in a nursing home or similar facility; or
- about whom for any other reason the solicitor might have concern about capacity,
the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity included as a result of any diagnosis, behaviour, medication or the like.
Contact the Shire Legal team if you have any questions.
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