Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 17 December 2016.
Many years ago, Amanda made a will, appointing her eldest son, Larry as her executor and leaving the whole of her estate to her three children, equally.
A few months before her death, at the age of 98, Amanda makes a new will, appointing her youngest child, Tom as executor and granting him the right to reside in her home for the rest of his life.
Tom had been appointed as Amanda’s financial manager several years earlier, with the Tribunal finding at the time that Amanda was suffering from dementia. Evidence in support of the application was provided by geriatrician who stated that Amanda had early symptoms of cognitive impairment.
Larry disputes the validity of Amanda’s last will and the matter proceeds to a hearing. Evidence is heard that Tom arranged for his mother to see a solicitor in relation to making a new will and that due to Amanda’s difficulties in understanding English, an interpreter was involved.
At the time, Amanda was mostly bed-bound and Tom was also her carer. There was also evidence that Amanda was profoundly deaf and that her eyesight was poor.
When the solicitor visited Amanda’s home, Tony left the room, but stood down the hall, still in Amanda’s sight. The solicitor made extensive file notes regarding the attendance.
The solicitor returned a few days later and after the will was read by the interpreter, Amanda executed the new will, signing it with an “X”. The court expressed some doubt as to the interpreter’s ability to translate the will correctly.
The court states that it requires “vigilant consideration” that Amanda “knew and approved” the content of the will, in circumstances which included Tom being instrumental in arranging for the making of the new will.
The court however found, relying heavily on the solicitor’s file notes, that Amanda possessed the requisite testamentary capacity and ultimately made a grant of probate to Tom, declaring her last will valid.
The legal costs of the hearing were paid from Amanda’s estate.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
