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Will Updates - case law - 21 November 2023


Because the testator had not complied with the strict requirements for ‘due execution’ of a Will, the Court’s Registrar was not able to grant Letters of Administration to the applicant. The Application had to go before a Justice of the Supreme Court.

The Court was asked to decide whether the testator had properly evidenced his intention to make a Will; or his ‘testamentary intention’. After examining the relevant provisions of the Succession Act 1981 (Qld), Davis J decided that even despite these irregularities the Will of the testator had been properly executed.

The key take-aways of this case are to ensure that, whether you make your own Will or engage a lawyer to help make your Will, that the Will is signed on each page by you and two witnesses. This avoids the additional costs of making an application for a Judge to determine whether you intended the Will to be valid.

Re Briggs (dec’d) [2023] QSC 226

It is an extremely important part of a valid Will that the testator had capacity to make the Will. Generally, this means that the testator needs to be of sound mind, not be pressured into making the Will by anyone, and not be suffering any delusions. However, it has been long established that a person can have ‘periods of lucidity’ where they have capacity to make a Will.

This case was about a person who made two Wills: one in 2010 and another in 2016. The later Will included a standard term that all earlier Wills were cancelled, which included the 2010 Will. Both Wills were properly signed and witnessed. However, the deceased had been diagnosed with dementia around the time of making the 2016 Will. There was significant evidence available which suggested that the testator did not have capacity when she made the 2016 Will. In a case such as this, a person who seeks to uphold a Will when the testator may not have had capacity needs to prove capacity. Because of this, the Court was required to consider whether capacity was in issue.

Davis J was tasked to consider whether the 2016 Will was made by the testator during a time when she had capacity. In doing so, the long-established tests in previous cases (Banks v Goodfellow (1870) LR 5 QB 549 and Frizzo v Frizzo [2011] QSC 107) were applied. These are generally:

  1. the testator needs to be aware of the significance of the act they are about to do (the making of the Will);
  2. the testator needs to be aware of the nature, extent and value of their estate of which they have a power to dispose of by bequests under their Will (at least in general terms);
  3. the testator needs to be aware of those who might reasonably have a claim upon their estate, and the basis for the claims by such people;
  4. the testator needs to have the ability to evaluate and discriminate between the (potentially) competing claims each person may have to their estate; and
  5. no disorder of the mind should ‘poison their affections’ or ‘pervert their sense of right’, nor should any insane delusions influence their will.

In this case, Davis J had received two letters from the testator’s treating doctors – one which was approximately six months after she had made her 2016 Will, and another around seven months after the date of the first doctor’s letter. Both letters expressed the doctor’s opinions that the testator did not have capacity to manage her health circumstances, and the second doctor’s letter opined that she did not have capacity to manage her health, personal and financial affairs. Davis J also examined the appointment notes of the officer of the Public Trustee who drafted the 2016 Will.

Even though the first doctor’s letter was issued six months after the 2016 Will was signed, Davis J found that it was likely that the testator did not have capacity to make the 2016 Will. Davis J also observed that the terms of the 2016 Will were materially similar to those of the 2010 Will, and there was no question that the 2010 Will was made when the testator had capacity.

Normally, when a Will is affected by circumstances like these the medical practitioners and the witnesses to the Will need to submit evidence and be cross-examined. This is because it is a very serious thing for a Court to set aside a Will and they need to be persuaded that it is appropriate to do so. In this case, the application to set aside the 2016 Will was not in contention and the Court was satisfied the existing medical evidence (the two doctor’s letters) were sufficient to provide the testator did not have capacity. Therefore, Davis J set aside the 2016 Will and the 2010 Will was deemed to be the testator’s law Will.

The key take-aways of this case are to ensure that when making a Will, there is detailed evidence and file notes to confirm that a testator has capacity. Usually, where this is in question a lawyer will ask their client to obtain a letter of capacity or will write to a person’s treating GP seeking a report confirming capacity.

Re Barrington

This was a case that we were involved in. This was a case where we applied to the Supreme Court of Queensland for an order that the testator’s Will dated 15 May 2021, which was not witnessed, be upheld as the testator’s last Will, as an ‘informal Will’.

This case was important because the testator had signed a draft Will while not in the presence of two witnesses, being a formal signing requirement under the Succession Act 1981 (Qld). After this, the deceased lost capacity and was not able to sign a final Will. Our application sought that the Court dispose of this formal signing requirement and uphold the document as the testator’s law Will. The Court has discretion to do so when there is evidence that:

  1. there is a ‘document’ – which can be a written document or a digital document, such as a video recording (there have been cases where an un-sent text message was held to be a Will);
  2. the document purports to show the testator’s ‘testamentary intentions’, how their property is to pass when they die; and
  3. that the document is intended to operate when the testator dies.

It was also necessary to prove that the testator had capacity. In cases where an application is made for an informal Will, the usual presumption of capacity is not given so evidence needs to be provided to the Court to prove this.

Thankfully, the testator had obtained a letter of capacity from his doctor before attending our office to make his Will. The doctor expressed their opinion that the testator had the required capacity to make a Will and this was submitted into evidence. We had also contacted the doctor to ask them to explain further what tests were conducted to ensure that the testator had the required capacity – these details were also submitted into evidence.

Because the application was uncontested, and Ryan J was convinced that the testator had capacity at the time he signed the draft Will, there was no need for this evidence to be tested nor for the doctor to be cross examined. Ryan J found that the draft Will signed by the testator on 15 May 2021 constituted an informal Will and upheld it as the last Will of the testator.

The key take-aways of this case are to ensure that a final will is signed as soon as possible, and that the will meets the formal signing requirements of the Succession Act 1981 (Qld). Though it is not the end of the world if these requirements are not met, it avoids the need for costly applications to the Court.

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