The term’ testamentary capacity’ refers to a person’s mental ability to make a Will, and it is a crucial concept when it comes to forming testamentary intent and creating a Will.
The foundational case that establishes the legal test for whether a person can make a will is the English case of Banks v Goodfellow (1870) LR 5 QB 549 the Court held that a testator has testamentary capacity where the testator:
- understand the nature and effect of making a Will;
- appreciates the extent of their property;
- understand the moral claims of potential beneficiaries and
- does not suffer from insane delusions or disorders of the mind.
The Banks v Goodfellow case concerned Mr John Banks, who made a Will leaving his estate to his niece. Mr Banks suffered from several delusions, as he believed that devils or evil spirits frequently visited him and that Mr Featherstone Alexander molested and pursued him (notwithstanding the earlier death of Mr Alexander).
When the defendant brought proceedings questioning Mr Banks’ testamentary capacity in light of these delusions, the Court found that his delusions had no impact on the gifts he made in his Will and did not lack testamentary capacity.
Can a person suffer from delusions and have the mental capacity to make a Will?
Unless there is a connection between the delusions and the dispositions of the Will, the existence of an insane delusion under which the deceased laboured does not automatically preclude a finding of testamentary capacity.
Carr v Homersham
In Carr v Homersham [2018] NSWCA 65 a contemporary analysis of the relevant principles and their use in determining how they should be applied to determine whether a person has the capacity to make a will. The facts of the case are as follows:
Where a person harbours a delusional belief, this will not automatically preclude a finding of testamentary capacity unless there is a connection between the delusions and the dispositions of the Will. For example, suppose the delusion does not affect the testator’s decisions regarding the disposition of their estate. In that case, the fact that the testator suffers delusions does not prevent them from making a Will.
Further, holding a factually incorrect or irrational belief does not necessarily mean that the belief rises to the level of a ‘delusion’ affecting testamentary capacity. As always, much will depend on the circumstances of each case. The common law has long regarded a person’s power to freely dispose of one’s assets by Will as an essential individual right. As such, to displace testamentary freedom based on a lack of a sound disposing mind, memory, and understanding is a grave matter.
A solicitor’s duty to take Will instructions still stands even in circumstances in which capacity is in doubt due to the client’s mental deficiency. Even if the client’s capacity may be in doubt, the solicitor should not prematurely judge the question of capacity as it is ultimately a matter for the Court to determine the testator’s testamentary capacity.
Background
In the Estate of Coonan [2023] ACTSC 320 (McWilliam J), The Court had to determine the legality of a will created by Anne Coonan (the deceased) on November 6, 2006, while the deceased was a patient in a psychiatric ward and awaiting cancer surgery. One part of the Will states:
“I have not yet received money…rightfully owed to me from the copyright fees of my software and related stationery… This sum of money will be substantial due to its accumulation over many years… I wish for a Foundation to be established to use this money to assist farmers in rehabilitating their land. This assistance can be in the form of low-interest loans. The rehabilitation must include the river or creek on their property. After 20 years, the money is to be divided among five specified individuals” (at [4]).
The Will is in the following terms:
“Calvary Hospital
November 6 2006
Last Will and Testament
I am undergoing surgery. This will is to revoke my prior Will. I nominate Teddy Coonan and Michael Coonan as executors.
There is money I have not yet received, which is the legitimate copyright fee from my software and associated stationery. This money will be accessible from the courts. The crimes involved were Australia-wide, so I can only presume it is the federal courts. This money will be quite substantial since it earnings over many years. The software copyrights must be sold to people who can maintain the software. Stationery (sic) copyrights have the same rules. It is best sold together. I suggest Warrick Capper and Luke Webber.
I want a foundation to be established and to use the money to help farmers prepare to follow green principles (sic) and restore their land. It can be done as low-interest loans. The restoration must include the river or creek on their property. After 20 years, the money will be divided between Teddy, Michael, Lorraine (Oliver), Mary-Fran, and Nita (Brian’s wife). Michael of [address] in Victoria can supply complete addresses for all concerned.
Yours sincerely
Ann E. Coonan
November 7 2006.”
The Will was signed by the deceased and purported to be signed by two Justices of the Peace, but neither attested to having seen the deceased sign the Will in their presence before subscribing to the Will, and neither witness could subsequently be located to give evidence about the execution of the Will. The Court concluded that the Will was not valid.
Informal Will
In different circumstances, the administrator could apply to the Court to dispense with the formal requirements to treat the signed document as the deceased’s ‘informal will’. However, the validity of the Will was also challenged based on the testator’s absence of testamentary capacity. The evidence concerning testamentary capacity fell into three categories:
- the text of the Will itself;
- the evidence surrounding the making of the Will and
- the medical condition of the plaintiff when making the Will.
Delusion
The Court observed that the text of the Will was incoherent and
‘Overall, the Will overlooks immediate family members and speaks of a fanciful idea about a substantial pot of money attached to copyright fees … The text of the Will and the scheme devised give rise to doubt in the conscience of the Court that the testator had testamentary capacity at the relevant time. On the plain words of the Will, I could not state with confidence that the Will constitutes a document made by someone who comprehended the effect of what she was doing, had a proper understanding of the extent and character of the property she was dealing with, and had given consideration to claims that might naturally weigh upon her’ (at [44]).
The surrounding circumstances and the medical material put before the Court established that the deceased ‘suffered from a history of schizophrenia, which is a relevant disorder of the mind’ (at [45]).
Her discharge summary, created on November 28 2006, referred to a
‘known history of chronic paranoid schizophrenia and alcohol dependency’ (at [47]).
Under the treatment and progress section, on admission, the Deceased presented as follows:
…guarded and with delusion content, and it became more apparent during the early days of her admission that she was floridly psychotic on the background of her chronic paranoid schizophrenic illness.
On September 13 2006 (less than two months before executing the Will), the Psychiatric Registrar at Canberra Hospital confirmed that the Deceased has an established diagnosis of chronic paranoid schizophrenia going on to state:
[the Deceased] continues to suffer from somatic delusions, believes that the muscles in her legs have been cut electronically and cannot entertain that this belief might be false. She also suffers from auditory hallucinations in the form of electronic noises, which only she can interpret. She denies experiencing [auditory] hallucinations in the form of voices…
However, on the day the Will was signed, Dr Friedgut (a geriatrician) wrote in their clinical notes:
“she is continuing to remain quite capable of lucid thought and in spite of her physical illness she [is] capable of making a will. There is no doubt in my mind that she is of “sound mind to make a will” ‘(at [52]).
The decision
The Court found there were a number of matters which detracted from the weight given to the opinion expressed in the clinical notes (at [58]):
- a) There is no record of the investigations undertaken to form the view expressed. If it was simply that the Deceased could have a lucid conversation, that is not sufficient to establish testamentary capacity.
- b) The note does not, in terms, reveal that the doctor’s opinion substantively reflected consideration of any of the three matters contemplated in forming a view about testamentary capacity.
- c) There is no record that the doctor had read the Will the Deceased proposed to execute. Had he done so, it is unknown whether the doctor would have adhered to the opinion recorded in the medical notes.
- d) The note and the view formed are at odds with all other medical evidence before the Court.
Considering all the evidence, the Court was ‘not persuaded that the deceased had sufficient soundness of mind, memory and understanding concerning her family and, more particularly, of her assets or what to do with them. The doubt I entertain is substantial enough to preclude a belief that the deceased had testamentary capacity when she executed the Will (at [66]).
(a) The medical evidence confirms that the Deceased had a diagnosed mental disorder, including paranoid delusions. The Deceased’s acute mental disorder has a significant and extensive history.
(b) The contents of the Will are primarily nonsensical. They reflect the Deceased’s delusion that she had a substantial amount of money to distribute, which was not the case. The Will also reflects the Deceased’s belief of crimes against her intellectual property rights. The Court could not conclude that the contents of the Will were unaffected by the Deceased’s diagnosed mental disorder.
(c) The contemporaneous evidence of the medical opinion sought about the Deceased’s mental state on November 7 2006, is insufficient to address those concerns.
The Court decided that the deceased passed away without a will and ordered that
(1) Under section 12(1) of the Administration and Probate Act 1929 (ACT) (Administration Act), Margaret Majella Jones is granted letters of administration for the intestate estate of Anne Elizabeth Coonan (Estate), who passed away on 1 August 2020.
(2) The Registrar is instructed to carry out all necessary actions to implement the grant of letters of administration mentioned in Order 1.
(3) After proper administration, as per section 49C of the Administration Act, the Administrator is authorised to distribute the remaining Estate equally among Peter John Coonan, Timothy Gerard Coonan, Francis Damien Coonan, Theresa Imelda O’Keefe, Paul Edward Coonan, Patricia Mary Coonan, Catherine Louise Coonan, and Margaret Majella Jones.
(4) The expenses of the application are to be covered from the Estate on an indemnity basis.
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