Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 14 August 2020.
Jenny has two children, Penny and David.
Jenny owns two houses and makes a will, leaving a house to each of her children.
A couple of years before she passes-away, Jenny changes her will and leaves both of the houses to David, effectively cutting Penny out of her will.
Penny commences action in the Supreme Court of New South Wales alleging that Jenny did not have the testamentary capacity to make her last will. She also alleges that David applied undue influence in causing her to make the last will solely in his favour.
The Court hears evidence that when Jenny made her last will, she did not use her usual solicitor, that David was present during the consultation and that Jenny was 90 years of age at the time.
David alleges that Penny stole personal effects and money from Jenny during her lifetime and this is why she was left out of the will. Penny and her children give contradictory evidence regarding their relationship with Jenny.
There was medical evidence adduced that two years before making her last will, Jenny was suffering from mild cognitive impairment.
The solicitor’s file notes, regarding the drafting of Jenny’s last will, were considered by the court to be unsatisfactory because they did not address Jenny’s testamentary capacity and they did not explore the reasons for the extreme change to her will.
The Court ultimately finds that the circumstances surrounding the making of Jenny’s last will, which included the possibility of “practical coercion”, created a “cloud of suspicion” and where David could not establish that Jenny possessed the requisite capacity to make her last will, it was ruled invalid.
The “penultimate” will was therefore enlivened and Penny received one of the houses.
If you would like a particular issue addressed, please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
