Testamentary Capacity & Mental Illness

We have posted before about Testamentary capacity & Mental Illness. A recent Victorian case revisited this test. Janet Parker died in May 2016 at the age of 61. She had previously been married twice[ she had one child Alana who had two children (Janet’s grandchildren) Rose and Frank Willis.

Janet Louise Parker completed a will without legal assistance using a ‘will kit’ in June 2010 (Will)

The requirements for a valid will are set out in the Wills Act 1997(Vic) (the Act); including that the testator sign the will or acknowledge his or her signature ‘in the presence of two or more witnesses present at the same time and that ‘at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other’.

Janet’s Will did not meet these requirements as it was witnessed by only one witnesstherefore it is an informal will.

Janet appointed her brother, Leonard as executor and bequeathed her estate to Alana, Rose and Frank inequal share of my total estate, the Will positively excludes certain named persons.

Len Parker agreed to renounce his appointment as executor to allow Alana to seek a grant of probate of the Will on the basis that although it was an informal will, it was her mother’s last will and reflected her testamentary intentions. Alana made application to be appointed administrator of the Will in December 2016.

The application was heard in court in September 2017. By that stage, Alana had become concerned about the validity of the will, apart from its informal execution. Janet had no contact with her grandchildren during her lifetime and had suffered from schizophrenia for many years, characterised by hallucinations and paranoia.

Alana’s own relationship with Janet was difficult as a result of her mother’s illness, although there was never a complete estrangement. Alana made enquiries of her mother’s former doctors, including her psychiatrist who suggested that Janet may not have had testamentary capacity at the time she signed the Will

Testamentary Capacity

If Janet lacked testamentary capacity, the Will cannot be admitted to probate. Janet’s estate would then be administered under the rules of intestacy, with the consequence that Alana would be entitled to the whole of her estate.

The Judge found that Janet suffered from schizophrenia characterised by paranoid beliefs that from 2005 were in relation to her ex-husband and his children, but that aside from those beliefs she was otherwise of sound mind, able to manage her affairs and make financial decisions.

In particular, I find that Janet’s delusional beliefs about her ex-husband and his children have not resulted in her making a disposition that would not otherwise have been made.

The Court accepted evidence that  Janet was able to look after her own affairs, including financial affairs, without the assistance of an administrator or guardian. Janet lived alone, and psychiatric interviews conducted in her home in August 2010 to suggest that her home showed she was coping well with daily life.

Despite her longstanding schizophrenia, Janet was divorced from her second husband five years before making the Will, without the need for a litigation guardian.[5]Further, in June 2015, five years after making the Will, she was apparently able to purchase the property she owned at the date of her death without the need for an attorney or administrator, as the transfer is signed by her alone.

The court held that the elements of the test for testamentary capacity where there is partial unsoundness of mind, as posed in Banks v Goodfellow, were satisfiedfinding that Janet that testamentary capacity when she executed the Will.

Informal Will

The Court accepted that the Will satisfied the requirements for admission to probate. In all respects, except for the presence of only one witness, the Court held that the Will would on its face meet the formal requirements for a valid will. It is in writing, there is no doubt that is signed by Janet the testatrix, and from its content shows that she intended it to be her will.

The document completed in Janet’s handwriting was a “Will Kit” containing multiple references to it being used to make a will. Including a heading ‘This is the last Will and Testament’; the directions on the reverse are headed ‘Directions for Making a Will’; the backsheet begins ‘The Will of…’; the operative part begins with the printed words ‘I revoke all former wills and codicils made by me’; the section for the appointment of an executor clearly identified her brother and contains printed words that refer to the payment of funeral and testamentary expenses and the death of the testator; the printed words ‘I GIVE devise and bequeath unto’ appear before the section that Janet has completed in relation to her beneficiaries; the signature panel refers to ‘the abovenamed Testator’ signing for her ‘last Will’.


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