Published in The Coffs Coast Advocate on 15 November 2014.
In May 2014, John attended his solicitor’s office for the purpose of preparing a new will and an enduring power of attorney. The power of attorney was executed at the time but although John wished to leave the whole of his estate to his cousin, John decided to give his choice of executor some more thought before executing his will.
Unfortunately in August 2014, John is diagnosed as suffering from a terminal illness and is admitted to hospital. John contacts his solicitor who attends the hospital. John tells his solicitor that he wants his will drawn up in the terms that were discussed “last time”. John also asks his solicitor to be his executor and his solicitor agrees.
A few days later, John’s solicitor contacts the hospital to confirm his instructions. John tells him to proceed with the will as discussed. Later that day, John’s solicitor attends the hospital with the intention of facilitating John’s execution of the will. When the solicitor attends the hospital, he discovers that John is in extreme pain and is having difficulty talking. The solicitor reads the will aloud and asks John if he understands. John is able to provide a “grunting yes” but is physically unable to sign his will.
The following morning, the solicitor contacts the hospital to arrange for a further appointment with John but is advised that he was still too drowsy. Unfortunately, John died later that day.
John’s cousin, James seeks his own legal advice and is informed that it is possible for an application to be made to the court for a declaration that the will prepared for John, but not executed, is in fact valid. The public trustee, being the executor of John’s previous will, is named as the defendant.
The court finds that John had capacity at the time he gave instructions to his solicitor, but that he had lost capacity when the draft will was bought to him at the hospital. The court found however that John was not “beyond forming intention” to make a will and ultimately declared the will valid in respect of John’s final wishes.
