The aging process –legal mental capacity

Posted on February 22nd, 2019

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Can my step child contest my will?In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the couple’s assets when they died.  As a consequence the children brought legal proceedings challenging the validity of both of their parents’ last Wills.  Judge Lindsay had to consider whether “unusual behaviour” by aging parents was sufficient to legally invalidate their Wills (lack of mental capacity to make a Will).  The Judge was careful to consider the evidence of their behaviour at the time of the making of the Wills.  In the husband’s case, for example, the Judge concluded that his Will was a “rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so”.  He noted that the Husband had been subsequently prone to hallucinations – he had accused his wife, for example, of sending prostitutes to “knock on his door and to ring his doorbell late at night” but such behaviour occurred after the husband had made his Will and could be excused to a certain extent by his reaction to bad news.  His wife had consulted solicitors about a divorce.  The case therefore highlights that the mental capacity to make a Will is time specific and an important issue (amongst others) is whether the will-maker is capable of a ‘measured response’ to his or her family situation.

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in Wills and Estate Planning, Commercial and other Litigation and Employment LawIf you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

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