Testamentary Capacity: Re Maddock; Bailey v Maddock

In the 2022 Supreme Court of Victoria decision of Re Maddock; Bailey v Maddock, the court considered whether a deceased person had lacked testamentary capacity to make his last will. The decision provided a useful summary of the matters, which ought to be investigated by a solicitor preparing a will for an aged testator in order to satisfy themselves that their client has testamentary capacity. This article summarises the decision.

Facts of Re Maddock; Bailey v Maddock

The deceased had died on 17 June 2020, aged 97. The deceased was survived by his wife, two children and a stepdaughter. The plaintiff was a friend of the deceased. The deceased left the following three wills, all of which had been prepared by a solicitor.

2018 will

In the deceased’s 2018 will, he had appointed two friends and the plaintiff as executors. The will left $25,000 to each executor, $180,000 to various charities and $600,000 to his wife. He had left the residuary estate as follows:

• 20% to his son
• 20% to his stepdaughter
• 60% to the Royal Children’s Hospital

This will was witnessed by the solicitor and his assistant.

2019 will

The deceased’s 2019 will contained the following changes:

• The will appointed the plaintiff as the sole executor
• The will left $75,000 to the plaintiff
• The will left $300,000 to the testator’s wife
• The will contained the same clauses for the residuary estate as per the 2018 will

This will was witnessed by the solicitor and the plaintiff.

2020 will

The deceased’s January 2020 will was the same as his 2019 will, except the deceased’s Bentleigh East property was left to the plaintiff (the testator’s friend) and there was a clause added that the wife was suffering from ‘advanced dementia and had very ample and sufficient monies for her needs’.

The 2020 will was witnessed by the solicitor and the plaintiff’s partner.

Testamentary capacity

The plaintiff applied for probate on the 2020 will. The estate was valued at approximately $3.59 million. The wife filed a caveat objection to the grant of probate and filed grounds of objection that the deceased lacked testamentary capacity before or at the time of the 2020 will was signed and that it was made in suspicious circumstances. The main concern was there was no contemporaneous medical evidence to confirm the deceased had testamentary capacity and no evidence of steps taken by the lawyer to confirm testamentary capacity.

The Probate Registry requested medical evidence from the treating medical practitioner because the death certificate stated ‘cerebrovascular disease 18 years’ and the will was only signed five months prior

In summary, the treating doctor’s evidence was that the deceased had testamentary capacity at the time he signed his last will.

The defendant obtained a report from a neuropsychologist. In summary, her opinion was that at the time of the 2020 will, it is likely the testator did not have testamentary capacity due to memory and executive function deficits and a high level of vulnerability.

The deceased’s solicitor gave the following evidence:

• The deceased was a serial will-maker. He was a tenacious person and had engaged lawyers to set aside VCAT orders appointing an administrator manage his own affairs.
• The solicitor also prepared an Enduring Power of Attorney and advised the testator in relation to a transfer of his property to the plaintiff.
• The solicitor took instructions over the phone for the 2020 will and said he would need a letter from the testator’s doctor to confirm he had capacity.
• The following day, the solicitor drafted the will and attended on the testator where he confirmed his assets
• He read out each clause in the will and advised him that his wife, son and stepdaughter could dispute the will. The solicitor was of the view the deceased was in a good mood, alert and could talk coherently
• When the will was read out to the deceased, the plaintiff was in the room. The plaintiff’s partner then entered the room as the second witness to the will.

Legal principles relating to testamentary capacity

The court considered the following principles:

• Where a will is rational on its face and duly executed, there is a presumption that the deceased had testamentary capacity
• Where there are circumstances that raise suspicion that the deceased lacked testamentary capacity, the force of the presumption is reduced
• The executor must satisfy the court on the balance of probabilities that the will is valid; that is, the deceased had testamentary capacity and knew and approved the contents of the will at the time of its execution
• The test for testamentary capacity is set out in Banks v Goodfellows as follows:
  • The testator shall understand the nature of the act and its effect
  • The testator shall understand the extend of the property of which he is disposing
  • The testator shall be able to comprehend and appreciate the claims to which he ought to give effect
  • There is no disorder of the mind
• A solicitor taking instructions for a will has a duty to ensure that the person giving instructions has capacity and is giving instructions voluntarily
• Where a testator is elderly, it is prudent that a medical opinion be obtained as to the testator’s medical condition and whether any such conditions may affect their testamentary capacity
• In considering testamentary capacity, the court may request evidence as to the steps taken by the solicitor to confirm testamentary capacity. The weight given to their evidence will depend on a number of factors: their experience, training and understanding of the test, knowledge of the will-maker, age and state of health of will-maker, independence, and will-maker’s presentation to the lawyer and whether there were any red flags

Court’s found testator lacked testamentary capacity

In summary, the doctor’s evidence failed to consider all matters relevant to the test for testamentary capacity. The solicitor did not make any enquiries about the deceased’s recent medical history or about the deceased’s cognitive capacity. Given the client’s age, demanding nature, the involvement of the plaintiff in witnessing the 2019 will, his involvement in the transfer and in the making of the 2020 will, the solicitor ought to have been alert to satisfying himself of the relevant test of the deceased’s testamentary capacity.

It was found that the deceased understood his assets, but not their value and did not appreciate or comprehend the claims of the defendant and the two children. Therefore, he did not have testamentary capacity when he signed his last will.

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