A Will gives you the right to dispose of assets the way you wish

Beryl Hordern died in 2014. In 2001 she had executed a will completed in her handwriting using a Will kit leaving the whole of her estate to her niece, Ann Richardson. In 2004 after a falling out with her niece, Beryl instructed a solicitor to make a new will that left the whole of her estate to Cynthia Carr.

Beryl’s solicitor queried why she was making such a drastic change Beryl replied that Cynthia had been a good friend to me over a great number of years and was her only real friend. When the solicitor asked about her niece Beryl replied that she didn’t want to leave anything to her niece or nephew saying that Ann had disgraced herself with comments about my sister (her mother) and the nephew doesn’t deserve anything.

Beryl believed that Ann did not need the money and was upset that she had not visited or inquired about her health or wellbeing since their falling out.

Ann told the court that she had a “normal loving relationship” with her mother, who had died in 1972, however she had fallen out with her aunt and that their relationship broke down after Beryl asked her to make inquiries about how she could die by euthanasia.

Ann had contacted the Euthanasia Society and informed Beryl that they had told her  it was “not legal to do it. And that the society does not assist people to die”. Ann said that her aunt had replied: “You knew I wanted it so why did you stop it? What you did was wrong. I can’t believe it.”

Beryl had been unsure exactly how much her estate was worth, but estimated it to be more than $1 million.

Ann lives in Portugal, so instructed her solicitor to seek, on her behalf, a grant of administration of Beryl’s estate with the 2001 will annexed.

Ann believed that the 2004 will was invalid because Beryl lacked testamentary capacity when she signed it. Cynthia sought probate of the 2004 will.

Under the Banks v Goodfellow test, the Will maker must:

  • understand the nature and effect of a will
  • understand the nature and extent of their property
  • comprehend and appreciate who has a reasonable claim on their estate
  • be suffering from no disorder of the mind or insane delusion that would result in a gift that would not have been made under normal circumstances

The Court found that Beryl had acted irrationally and forgetfully in the period of about six months before she executed the 2004 will, as a result Beryl lacked testamentary capacity when she executed the 2004 will granting administration to Anne of the estate under the 2001 Will.

Cynthia appealed that decision in the Court of Appeal, which unanimously ruled that Anne was no longer the beneficiary of the will and that Cynthia was now entitled to the estate.

The Court of Appeal rejected the trial judge’s finding that Beryl was “delusional” in her reasons for changing the will and had erred in finding that her decision had resulted from “an unsoundness of the mind”.

It found that Beryl was well aware of her actions and their repercussions when she made the 2004 will, affirming that “[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter”.





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