This case involved determining the validity of two wills made over 50 years apart. Although later wills usually cancel previous wills, it will depend, in part, on the individual’s mental ability to understand the complexities involved in making the later will.

The deceased died in March 2012, leaving two wills. His latest will was dated 4 May 2009 (“the 2009 will”) and his earlier will was dated 20 August 1957 (“the 1957 will”).

In the 2009 will he had named A and B as his executors (his legal personal representatives). He had also named 13 different beneficiaries; five people were to share $100,000, another five (including C, the defendant) were left $50,000 each, and the remainder of his estate was to be shared between three charities.

A and B’s claim

A and B issued proceedings in November 2013 in the Supreme Court of South Australia asking the Court to pronounce, or confirm the validity of, the 2009 will in solemn form.

What is solemn form?

A will is granted probate, or proved, in solemn form when there is a concern about the validity of a will and involves the matter being heard before the Court.

A will can also be proved in common form, which is, unsurprisingly, the most common or usual form of probate.

C’s argument

C filed his defence and his own claim (“cross-claim”) at the end of January 2013. In his defence, C said the deceased did not have the necessary mental capacity (‘testamentary capacity’) when he made his 2009 will. In C’s cross-claim he asked the Court to instead pronounce for, or confirm the validity of, the 1957 will in solemn form.

All of the beneficiaries of the 2009 will were notified of C’s cross-claim and given opportunity to respond, but no one did.

How is testamentary capacity determined?

The Court referred to another recent South Australian case where Justice Gray had considered testamentary capacity. Justice Gray said:

“Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate – in general terms – and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person.” [i] [emphasis added]

The Court is entitled to presume, where there is no suggestion to the contrary, that a will which appears regular, and is properly signed and witnessed, is valid.[ii]

The deceased’s mental condition around 2009

C relied largely on evidence contained in medical reports. The reports suggested the following about the deceased:[iii]

– He underwent significant changes in behaviour and personality form around the year 2000;
– He was described as becoming “increasingly socially isolated”, refusing assistance and not attending family events;
– He hoarded large amounts of paper, reused paper towel, and was very frugal despite his significant assets;
– He stopped using cooking appliances and did not use a brand new bed or mattress;
– It was suggested he suffered extreme hyperactivity and possibly hypomania in 2006 and 2009.

Evidence from a medical practitioner specialising in memory disorders and aged care and rehabilitation said the following in relation to the deceased:

I believe there is significant evidence that …[the deceased] is likely to have had an underlying psychiatric illness which may well have impacted on his decision making and judgement in relation to his final Will.[iv]

Another consultant physician and geriatrician stated:

It is my opinion that at the time when … [the deceased] made the contested Will in 2009 he had an overriding mental dysfunction that was sufficient to disrupt …[his] ability to weigh the claims which naturally ought to press upon him. I consider that …[the deceased’s] mind was not free to act in a natural, regular, and ordinary manner. More specifically, I consider that …[he] had a mental illness – he had hypomania. This mental illness occurred on the background of an obsessive-compulsive personality disorder. As a result of the hypomania …[the deceased] formed and maintained unfounded suspicions about his family’s actions towards him, which critically influenced his decisions in his Will.[v]

The outcome

The Court concluded that the evidence raised a well-founded suspicion that the deceased suffered from a mental condition at the time he made the 2009 will and that it influenced his ability to make his will. There was no evidence put forward to suggest the deceased did in fact have the necessary testamentary capacity to make the 2009 will.

The Court held that it was appropriate to make an order pronouncing against the validity of the 2009 will and instead confirm the validity of the 1957 will.


[i] Wade v Frost [2014] SASC 163, [37].

[ii] See, for example, In re Unsworth, deceased (1974) 8 SASR 312.

[iii]Phillips & Anor v McLean [2015] SASC 15, [21] – [22].

[iv]Ibid [23].

[v] Ibid [35].