Case Update – Capacity to make a will found, despite dementia diagnosis

A recent decision from the Supreme Court in South Australia has shown how important it can be to hire a solicitor for the preparation of your will and highlights the fact that we should not necessarily discount a person as automatically being without ‘testamentary capacity’, solely on the basis of a diagnosis of dementia or advanced age related conditions.

Roche v Roche & Anor [2017] SASC 8 (8 February 2017)

In this case, the Plaintiff (Shauna) was the daughter of the deceased (John). Shauna applied to the Court to remove a grant of Probate in favour of her two sisters, the Defendants (Fiona and Deborah) who were appointed as executors in a Will made by John in 2006. Shauna sought to have an earlier Will made by John in 1997 admitted to Probate instead.

The 2006 Will was made in the context of a disagreement between Shauna and the rest of the family as to how Shauna would remain involved in the family business. At the time, the family business was also going through a significant restructure. Shauna eventually asked to be bought out of the business. The effect of the 2006 Will was that Shauna was no longer an executor of the Will or trustee of the relevant controlling trusts but could receive distributions at Fiona and Deborah’s discretion.

It was common ground that at the time the 2006 Will was executed, John was either suffering from or in the first stages of dementia. The dispute arose around whether this diagnosis compromised his testamentary capacity at the time of making the 2006 Will.

This is an interesting case for a number of reasons and well worth reading the full decision ( following are some points that were found to be noteworthy, by way of a brief summary:

  1. The testimony of John’s solicitors was key to the Courts assessment of John’s testamentary capacity in this case. John’s solicitors witnessed the execution of the 2006 Will and other related documents, and their file notes recorded descriptions of John’s behaviour and discussions at the relevant times.
  2. There were competing expert opinions about whether John had testamentary capacity when he made his 2006 Will. The medical evidence showed his dementia affected his executive planning capacity, power to concentrate and left him uninhibited. ‘But the test for testamentary capacity is more concerned with whether the testator comprehends the extent of their estate, the competing claims on that estate and the practical legal effect of the disposition’.
  3. Two documents recording John’s instructions in relation to the Will, one to his solicitors and one to his trustees, provided strong evidence that he had an understanding of the nature and extent of his estate as well as his daughter’s competing claims on that estate.

The letters of instruction showed that, whether for good reasons or bad, he was determined to disadvantage his daughter Shauna by denying her a degree of control equal to that of her siblings over family assets in order to preserve the Roche family fortune for his two granddaughters and future generations of the family.

  1. The evidence from the children was viewed by the Court as being ‘affected by the familial dispute and attempts to advance their respective cases‘. This limited their credibility and reliability in the eyes of the court.
  2. The combined force of the evidence was that if John was drawn to the matters relevant to the making of the 2006 Will in a structured setting, he had sufficient comprehension to have testamentary capacity.
  • It was decided that Shauna’s action be dismissed. Fiona and Deborah were successful in having the 2006 Will admitted to Probate in solemn form.

Turner Freeman Lawyers – Wills & Estates specialists

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