Challenging Wills and Dementia: Case Study of Chant v Curcuruto

In order for a will to be valid, the testator (i.e. the will-maker) must have mental capacity. A will made by someone without testamentary capacity will not be considered valid. This forms one of the main arguments for challenging Wills.  It is important to protect your estate from challenge through preparing your will with the guidance of an experienced lawyer. Your lawyer will be able to consider and document your capacity when you sign your documents.

A testator “must be of sound mind, memory and understanding” to make a valid will. [1] Courts balance several factors to determine whether the testator had the capacity to make sound judgements regarding their estate.

The person making the will must have been aware of:

• The significance of the act of making a will;
• The nature, extent, and value of their estate; and
• The people who would be ordinarily receive an inheritance under their will.

Consideration is also given to whether the testator has been suffering from a cognitive condition that prohibited the making of sound decisions at the time of instructing their solicitor and signing their will.

In the matter of Chant v Curcuruto [2021] NSWSC 751 the New South Wales Supreme Court considered the validity of Wills signed by Ken and Irene Shephard in early 2017.  The question of validity arose when Probate of the wills was sought in 2018.

The factors considered included that:

• In early 2017, both Ken and Irene were assessed to be suffering from moderate-severe dementia.
• It was suggested by the solicitors that an independent expert should assess Ken and Irene’s capacity, but this did not occur.
• Neither Ken nor Irene were existing clients of the law firm that prepared the 2017 wills.
• Instructions were provided to the solicitors by the sole substitute beneficiaries in the 2017 wills.
• The terms of the 2017 wills differed significantly to the terms of their previous wills.

The Court was satisfied that neither Ken nor Irene had testamentary capacity when they signed the 2017 wills. The Court stated that “the cognitive deficiencies of each were largely detectable and had been detected” [757]. Accordingly, Probate of the 2017 wills could not be granted.

If you wish to contest a will because you believe the testator lacked testamentary capacity to make their will, our Private Wealth Law and Estate Litigation specialists can assist you. We can also assist you in preparing your own wills.

 

[1] Bailey v Bailey [1924] VLR 294