Statutory Wills – on the grounds of lost capacity

Millie Phillips (Millie) is a 90-year-old woman who had three children by her former husband; two daughters Sharonne and Lynette (who died in tragic circumstances some time ago) and a son Robert. Sharonne has one child Anthony, and Robert has five children.

Millie whose estate is estimated to be worth approximately $90 million, suffered a stroke in April 2018 following which she has lacked testamentary capacity. Millie is presently being cared for at a facility and requires a high degree of care for daily living. Her cognition is severely impaired.

On 14 May 2018, orders were made appointing Sharonne and Robert as Millie’s financial managers under the Guardianship Act.

Millie had made at least two wills; on 13 June 1972 (the 1972 Will), with codicils made on 5 December 1973 and 13 July 1978 and on 2 November 2001 (the 2001 Will).

The 2001 Will revoked the 1972 Will. However, the original of the 2001 Will has not been located and Millie was heard to say, several times after the date of the 2001 Will, that she had no will – giving rise to the presumption that she destroyed the 2001 Will intending to revoke it.

Between November 2015 to April 2017, Millie had several conversations with Carolyn Deigan, a solicitor, in which she stated that she did not have a Will, did not know who to leave her money to and did not know who to trust to be her executors.

Carolyn prepared a draft will dated 22 May 2017 (the Draft Will). Although Millie did not execute any will she subsequently expressed her intentions in various discussions.

Millie and Anthony regularly engaged in very general discussions about her estate. In late 2016 or early 2017, Millie told Sharonne and Anthony that she had been thinking of leaving him a substantial asset in her Will but had been unsure about whether to tell him because of a fear that that knowledge might spoil Anthony and stop his drive and ambition.

Anthony brought an application for a statutory will; s18 of the Succession Act 2006 provides that a Court may authorise a will to be made, altered or revoked for a person without testamentary capacity – the Court must satisfy the following criteria:

  • The proposed will (or alteration or revocation) accurately reflects the intentions of the person as if they had testamentary capacity, and
  • the person lacks testamentary capacity, and
  • it is reasonable in all of the circumstances for the court to authorise the will and make the orders.

At first instance, the Court dismissed the application with costs, as Millie’s procrastination about making a Will suggested that her testamentary intentions weren’t ‘reasonably likely’.

On appeal, the Court considered that Millie making the Draft Will notwithstanding her comments that she did not agree with its contents, indicated a reason­able likelihood that she intended to have a Will produced

‘[t]he likelihood of making a will required the Court to inquire into the evidence as to the hypothetical subjective state of mind of Testator.’

However, even if the Court is satisfied that a proposed will is reasonably likely to be one that would have been made by a person with testamentary capacity, the Court must also consider the appropriateness of making an order.

The Court was satisfied with the evidence that Millie intended to make a Will; having had regard to the gifts made by the 2001 Will, the gifts proposed by the Draft Will and the gifts discussed with Carolyn- the Court concluded that the Draft Will reflected, to a very considerable extent, Millie’s wishes as to the disposition of her estate.

The respondents have sought leave to appeal the decision to the High Court

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