Relatives can continue to be annoying – even after you die

Betty Harris, died in September 2009 aged 95 leaving an estate in excess of $12.5 million. Her Husband predeceased her, they had no children and although her nearest living relatives were two nieces and two nephews she was not close to any of them.

Betty made a will in July 1996, appointing her niece, Coralie Hart, and a solicitor, Richard Spinak, as executors.

The Will left gifts of $100,000.00 to each of two of her sisters and the residue of the estate passed to Coralie. Betty’s sisters predeceased her therefore under the terms of the Will Coralie was entitled to the whole of the estate.

In March 2005, Betty made a new Will; later that month she informed her Solicitor that she wanted her neighbours, Robert and Beatrice Gray to receive her entire estate. In early April 2005, Betty made a will leaving her estate to Robert and Beatrice.

In December 2004 Betty underwent surgery for a bowel obstruction and remained in hospital until early February 2005. Whilst in hospital Betty was diagnosed with moderately severe dementia. On the basis of the diagnosis in January 2005, Coralie applied to the Guardianship Tribunal for the appointment of guardians and a financial manager.

Following her return to her home in February 2005, Betty was angry at Coralie as she had gained access to her home, removed documents and following the Guardianship order her bank accounts had been closed, and Betty was reliant on loans from her other niece, and her neighbours, Robert and Beatrice.

In mid-March 2005, Robert and Beatrice arranged for Betty to be assessed by medical specialists, who formed the opinion that she did not suffer from dementia and that she had testamentary capacity.

In August 2005, both Medical specialists  affirmed their early opinions assessing Betty again:

  • as suffering from significant dementia, and
  • as not suffering from dementia and being capable of managing her financial affairs with some assistance.

When Betty died Coralie & Richard Spinak as executors sought to have the 1996 Will admitted to probate. Coralie argued that Betty lacked testamentary capacity to make the later Wills in March and April 2005. Further, the 2005 wills were made at a time when Betty was under the undue influence of her neighbours Robert & Beatrice, who were complicit in the creation of the documents.

Beatrice sought probate of the 4 April 2005 will (in the intervening years Robert had died).

In addition, Betty’s two nephews and her other niece submitted that Betty lacked testamentary capacity to make the 4 April 2005 will but had capacity to make the will on 23 March 2005 (revoking the 1996 will) meaning that Betty died intestate and as a result they (and Coralie) would be entitled to share the entire estate.

The Court considered the history of events prior to and subsequent to the Wills being made in March and April 2005. The Court held that Betty’s belief that relatives were ‘out to get her money’ was not unreasonable in the circumstances, and in some respects, appeared to be correct.

The Court also considered the test of capacity necessary to revoke the 1996 Will and found that Betty was able to form a testamentary intention in March and April 2005 and

‘knew and approved of the contents of each will’

Similarly although Robert & Beatrice arranged for a lawyer to meet with Betty regarding a Will, they did not play any role in ‘framing the will in their favour’.


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