The Will maker, the Cancer Council, and capacity.

Elizabeth (“Betty”) Thomson, died in 2015 aged 94, in 2004 Betty made a Will that left her entire estate to her husband, Ken, or, if he predeceased her, to the Cancer Council.

In July 2011 Betty wanted to make a new Will. Betty’s second cousin Peter and his wife Vera had travelled to Melbourne to care for Betty shortly before the new will was executed; Betty asked Vera to get a will kit, stating that it wasn’t necessary to go to a solicitor. Peter claimed that Betty dictated her wishes to Vera who wrote them on the forms provided in the Will Kit before taking Betty to a local pharmacy to have the document witnessed.

The 2011 Will gave the bulk of Betty’s estate – $12,660,555.81 to be shared equally by Victoria Wilshire and, Peter Jeffs, naming Victoria as executrix of the will.

Four months later, Betty was admitted to an aged care home with dementia, glaucoma and visual impairment.

Betty’s GP, believed that Betty was of sound mind in 2011.

However her death certificate recorded her cause of death as “Bronchopneumonia – 4 days and Dementia of Alzheimer type – 5 years”.

Probate was granted on the 2011 will in March this year.The matter was brought to the Cancer Council’s attention by Betty’s nephews and nieces last October, they were disputing the granting of probate on the 2011 Will.

Betty’s nephew William provided the Cancer Council with a copy of medical records from 2010 that recommended Betty have constant supervision, had “required prompting and redirection when preparing sandwiches” and “had short term memory problems rendering her unable to use her 4-wheel walking frame”.

The Cancer Council believes an inconsistency of documents filed in support of the deceased capacity may give it grounds to seek to have the 2011 will revoked. However, the council has insufficient information to determine if it should challenge the will, with Victoria’s lawyers refusing to provide access to Betty’s medical records.

The Cancer Council has asked the court to order Victoria to hand over Betty’s medical records from between January 1, 2010 and January 1, 2013.