Testamentary Capacity & the Undutiful Will

MCINERNEY v D’ORTENZIO (FORMERLY O’DEA) & ORS [2026] SASCA 7

James Vincent McInerney (the first respondent) applied for probate of the 25 January 2019 Will. Alternatively, he applied for the 26 December 2018 Will. The second respondent is the Catholic Church Endowment Society Incorporated. The third respondent is Dr Harold Lane. They contended that the deceased, Ms O’Dea, did not have testamentary capacity when she executed the 25 January 2019 Will. They also claimed she lacked capacity for the 26 December 2018 Will. They argued that the 15 February 2018 Will should be admitted to probate.

Statutory Framework

In O’DEA v MCINERNEY & ORS [2024] SASC 110, each Will met the formal requirements. These are outlined in s 8 of the Wills Act 1936 (SA) (the Act):

(1) clear evidence that the testator intended the document to be their Will,

(2) signature by the testator (or by another person under their direction) intended to give effect to the Will,

(3) signing or acknowledgment of the signature in the presence of at least two witnesses at the same time, and

(4) signatures of both witnesses in the presence of the testator.

An experienced solicitor drafted all four Wills. On their face, they show the deceased’s signature and the attestation of two witnesses. Demonstrating compliance with s 8 of the Act at the time of execution.

Succession Act 2023 SA

It is important to note that the underlying legislative framework is on the cusp of significant reform. The South Australian Succession Act 2023 replaces and consolidates earlier statutes. This includes the Wills Act 1936. It commenced on 1 January 2025. The prior regime governed the events of this case. Yet, these reforms show an evolving approach to formal requirements.

The practical implications of the Act are significant for Will drafters and those involved in probate practice. Solicitors need to familiarise themselves with the updated formalities for execution. They also need to understand the new record-keeping requirements. There are enhanced rights for eligible persons to inspect or obtain copies of wills before probate. The simplified rules for small estates and the clarified standing for certain family provision claimants also affect day-to-day administration. Prompting the review and update of practitioners’ standard processes, checklists, and file note templates. Adherence to the new statutory requirements to guide clients about their estate plans and family provision claims.

Presumption

Where a Will is duly executed and complies with s8, two legal presumptions arise:

• First, that the testator had the necessary testamentary capacity at the time of execution; and
• Second, that the testator had knowledge and approval of the contents of the Will.

Both presumptions are rebuttable. They fall away if circumstances raise a real doubt about capacity or intention.

Under Roman law, certain individuals who were unfairly excluded had specific rights. Filed the querela inofficiosi testamenti, which is a complaint against undutiful or irresponsible wills. Children initiated such complaints against their parents. Parents against their children if they were unjustly passed over without reason. Additionally, brothers and sisters sharing the same father as the deceased brought this claim. If the will designated a turpis persona, it was a significant issue. These individuals were seen as having shameful occupations or conduct. This included actors, gladiators, prostitutes, or brothel owners. In this case, there is no sign that the testator’s half-sister was a turpis persona. Thus, it can’t be claimed that the will in question is a testamentum inofficiosum. 


The applicant, acting as executor, commenced proceedings due to uncertainty about which document represented the deceased’s final will. The applicant raised concerns about the deceased’s testamentary capacity. These concerns were based on medical and aged care assessments. There was a marked departure from the deceased’s earlier intentions in favour of the first respondent. Additionally, there were questions about her understanding of the January 2019 Will at the time of execution. The applicant also noted the nature of communications between the deceased and the applicant during 2018 and afterwards.

At first Instance

In O’Dea v McInerney & ORS [2024] SASC 110, all four Wills satisfied the formal execution requirements. Despite this, McIntyre J identified significant concerns. The concerns were about the capacity when the deceased made the December 2018 and January 2019 Wills. Evidence from community nurses and other witnesses indicated cognitive decline, confusion, and memory loss. There were difficulties with financial management and daily activities. There was also reduced self-care. All of these factors suggested possible dementia. The deceased’s significant vision impairment further raised doubts about her understanding. There was no evidence that the Wills were read to her or explained.

In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110,[2024] SASC 110 McIntyre J noted a significant change. The deceased’s testamentary intentions had shifted. Over many years, she had left the farmland to the second respondent. In the final two Wills, these assets were instead left to the first respondent. The first respondent is a distant relative who had to prove capacity. The first respondent’s explanations lacked credible evidence. Claims that the deceased had become disillusioned with the second respondent were included. Concerns about the land’s future were also mentioned. Witnesses described the deceased as a committed Catholic. The deceased’s earlier Wills had addressed concerns about the use of sale proceeds. This evidence did not support the first respondent’s account

An abrupt change in a testator’s Will does not necessarily make it invalid. In Key v Key [2010] EWHC 408 (Ch), the change was supported by a clear explanation. In this case, the deceased provided no satisfactory rationale for the change.

In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197, the deceased did not understand the extent of her estate. She also did not understand the claims on it. In the Estate of O’Dea (Deceased); O’Dea v McInerney & Ors [2024] SASC 110, significant asset redirection occurred. It happened during a time of cognitive decline and lacked a convincing explanation. Only the first respondent’s assertions were provided. There was no credible justification. This, unlike in Key v Key, supported the Court’s finding in O’Dea. These late changes were deemed significant when assessing capacity, knowledge, and approval.

Additional concerns related to the first respondent’s involvement in preparing and executing the later Wills. He attended meetings with the solicitor, assisted in organising execution, and stood to benefit from the changes. The solicitor failed to properly assess capacity. They did not maintain adequate records. The beneficiary was not excluded from discussions. The solicitor also did not ensure that the deceased understood the documents, especially given her vision impairment. One Will was signed with a ‘DRAFT watermark, which further contributed to these concerns.

‘a conclusion that a testator lacks testamentary capacity necessarily compels the conclusion that [the testator] did not know and approve the contents of his will’. Key v Key [2010] EWHC 408 (Ch) at 116

In O’Dea v McInerney (No 2) [2024] SASC 143, McIntyre J found that concerning the December 2018 and January 2019 Wills the applicant rebutted

• the presumption of Capacity, and
• the presumption of knowledge and approval

The first respondent did not prove that the deceased had capacity or that the deceased understood and approved those documents. The February 2018 will reflected the deceased’s long-standing intentions. There was no persuasive evidence of incapacity at that time. There was also no evidence of undue influence then. That will was admitted to probate.

Background

The applicant is the executor named in all four Wills at issue. The applicant is also a beneficiary under each Will. The same entitlement is granted in every Will. The first respondent is the primary beneficiary under the January 2019 and December 2018 Wills. The second respondent is the main beneficiary under the Wills dated February 2018 and March 2017. The third respondent, with his late wife, is to obtain land under the February 2018 and March 2017 Wills. He receives only a life interest in that land under the January 2019 and December 2018 Wills. On the death of the third respondent, the land passes to the first respondent.

In the Estate of O’DEA (DECEASED) O’DEA v MCINERNEY & ORS [2024] SASC 110. The applicant petitioned the Supreme Court of South Australia. The court was asked to decide which of the Wills by the deceased should be admitted to probate. If any of the Wills are valid, it will be determined. Four testamentary documents are involved, listed as follows:

· 25 January 2019 (‘January 2019 Will’) (Will 4, most recent).

· 26 December 2018 (‘December 2018 Will’) (Will 3).

· 15 February 2018 (‘February 2018 Will’) (Will 2).

· 30 March 2016 (‘March 2017 Will’) (Will 1, earliest)

In O’Dea, the four elements of the Banks v Goodfellow test were central. The last two wills showed signs of cognitive decline and significant, unexplained changes to the estate plan. The key issues were whether the deceased understood her actions. Did the deceased:

• appreciate her property?
• recognise those with potential claims?
• weigh competing claims?

These matters were critical to determining the validity of the disputed wills.

If, at the relevant time, the testator suffers

• from a mental condition,
• impaired consciousness or lacks testamentary capacity.
• Impaired intelligence, cognition, thought processes, or judgment

also affects capacity. This applies even if the condition is temporary or treatable.

The fourth prerequisite for a valid will is set out in Church v Mason [2013] NSWCA 481. It requires the ability to evaluate claims. It also requires distinguishing between claims. This necessity focuses on understanding and assessing the claims, consistent with Read v Carmody. Mental illness is not required; a wide range of cognitive, emotional, or mental dysfunctions is relevant when assessing capacity.

In Kozak v Berwecki [2008] NSWSC 39 at [44], Windeyer J mentioned that the Will in that case was “inofficious.” His Honour explained that such ideas originate from Roman law. He noted they should be approached with caution. This is because “freedom of testation is the law.” It is clearly a reference to the Roman law concept of testamentum inofficiosum. The idea of a will’s officiousness concerns the fairness. It questions how the testator disposes of their property. Affecting those who have claims on the estate.

Succession Act 2023 (SA)

The South Australian Succession Act 2023 commenced on 1 January 2025. It replaces three earlier statutes. These are the Wills Act 1936, the Administration and Probate Act 1919, and the Inheritance (Family Provision) Act 1972. These are merged into a single, modern legislative framework. The reform is intended to simplify succession law, reduce disputes, and strengthen respect for the deceased’s intentions.

The Act introduces several significant reforms. It creates an express statutory right for certain people to inspect a will. They can also obtain a copy of a will. This right did not exist before probate. Eligible persons include beneficiaries, spouses, and domestic partners. Children and stepchildren are also eligible, as well as individuals who would inherit under intestacy if there were no Will.

The new Act narrows who can claim, expanding eligibility for step-children. The family provision test now emphasises the deceased’s wishes as the primary factor. The test still considers whether there was ‘adequate provision for proper maintenance, education, or life advancement.’The court must focus on the deceased’s testamentary wishes in family provision claims as the primary consideration. Including stepchildren dependent on the deceased. If they have a disability or if their parent contributed to the estate. Nonetheless, stricter eligibility requirements apply to other claimants like grandchildren, siblings, and parents. These applicants must show that the deceased was maintaining or caring for them just before death.

The Act also reforms intestacy rules. It increases the preferential legacy payable to a surviving spouse or domestic partner from $100,000 to $120,000. Executor obligations have been clarified. They have been codified with a defined three-year period. During this period, beneficiaries can bring proceedings for failure to properly administer an estate.

For small estates, the Act allows a person to hold up to $15,000 of a deceased’s money or property. They can release it directly to a spouse or child. This process does not need a formal grant of probate. The legislation also addresses simultaneous deaths. If the order of death can’t be determined, the legislation treats the younger person as having survived. It considers them as having outlived the older by one day. Jointly held property is treated as held as tenants in common.

In practice, solicitors should use a checklist to guide and record their assessment. The solicitor should document the testator’s explanation of their assets. They should note the testator’s wishes and the reasons for them. Awareness of exclusions or reduced shares should be documented, along with reasons. The implications of decisions and significant changes from earlier Wills should be understood. Record observations about the testator’s cognitive state. Including both the questions asked and the testator’s responses, preferably in the testator’s own words wherever possible. To improve consistency and thoroughness, consider adopting a file-note template that captures key information by default.

A sample file-note template includes several sections:

• A summary of assets and a checklist of the Banks v Goodfellow criteria.
• A table for persons with a claim on the estate should be created. It should include reasons for exclusion.
• Consider including any differential treatment.
• Sections for questions posed and verbatim responses.
• Finally, include space for contemporaneous observations about capacity, demeanour, and communication.

At least, every file note should separately record the questions asked. It should also include the testator’s answers. Any explanations given for significant changes must be documented. Lastly, it should include the solicitor’s assessment of capacity at that particular point in time.

To prompt immediate reflection, ask yourself:

What can you change in your current file-note template to better capture the specific questions you ask? How can it also capture the testator’s verbatim answers?

If there is any doubt, an independent medical assessment should be considered. This approach provides clear evidence of capacity and informed decision-making if the will is later challenged.

In Key & Anor v Key & Ors [2010] EWHC 408, Briggs J observed that a solicitor accepted instructions. The solicitor was tasked to prepare a Will for an 89-year-old will-maker. The will-maker’s wife of 65 years had died just a week earlier. The solicitor did not properly confirm the will-maker’s capacity. There was also a failure in recording details of the meeting with the will-maker. One of his daughters, who became a major beneficiary under the new Will, attended the meeting. Briggs J called this a failure to adhere to the “Golden Rule”, which he explained as follows:

The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.

Briggs J further clarified that the “Golden Rule” is not a legal necessity. It does not impact a will’s validity. Instead, it serves as a guideline for best practice. He stated:

Compliance with the Golden Rule does not, of course, operate as atouchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons
with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided

Thomas v. Nash (2010) 107 SASR 309 emphasised an important point.
 A testator’s testamentary ability remains even if their cognitive ability is impaired. Their capacity is not as acute as it once was. Or operates within a very low percentile of the community. Still, more is required than a capacity to recognise those persons who have a socially acceptable claim on the estate. It is necessary to appreciate that there are competing claims on the estate. Making a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is also required. It is also important to remember that the issue is one of capacity. The testator does not need to actively consider the extent of the estate. Recalling all who have a claim and weighing those claims is unnecessary. It is merely necessary that a testator have a capacity to do so if they wish. Put simply, capacity, not perfection, is the test.

“A great change of testamentary disposition, evidenced by a departure from other testamentary intentions long adhered to, always requires explanation.”



With uncertainty about the testamentary capacity of a testator. The evidentiary burden of establishing that capacity rests with the propounder of the Will. See Veall v Veall [2015] VSCA 60.

Medical evidence shows that the deceased had a relevant medical condition affecting testamentary capacity. In such cases, the burden is on the propounder. They must prove that the deceased’s mental state did not impact the act of making the will. Bull v Fulton (1942) 66 CLR 295.

The appropriate time to assess capacity is when the testator signs the will, not years or decades earlier. Saunders v The Public Trustee [2015] WASCA 203 Evidence of events before or after this period is only relevant. This evidence is helpful only if it establishes the testator’s capacity at that specific time.

Once a real doubt about capacity arises, the burden shifts from those challenging the will. They must first raise a real doubt. Then the propounder of the will must positively prove that the testator had capacity at the time of execution. Doubt triggers the fall of the presumption. As a result, the propounder must prove capacity. Doubt leads to presumption falling. This, in turn, leads to proof by the propounder.

This can be remembered as a simple flow: Doubt → presumption falls → propounder proves.

This shift typically occurs when there is evidence of factors like cognitive decline or physical frailty. It can also happen due to inconsistent or sudden changes to testamentary plans or significant beneficiary involvement in will-making. To meet this burden, the propounder submits evidence that the testator understood and appreciated the act of making the will.

Courts find contemporaneous legal file notes, as well as observations from those attending at execution, to be particularly persuasive. This includes solicitors and witnesses. Independent medical assessments at the relevant time are also persuasive. Consistent explanations for any changes further add to their persuasiveness. Lay or medical evidence can both be probative. The court will weigh their value in the context of all the circumstances.

Practice tip: Keep detailed contemporaneous notes about a testator’s capacity. This is especially important if there are cognitive, emotional, or mental concerns. Independent assessments should be considered. The testator must understand the nature and effect of their decisions. They must recognise the claims on their estate. They should also be capable of explaining any significant changes to their testamentary intentions. To structure the interview, consider asking clients specific questions. This approach helps to guarantee a thorough record. Ask questions like: “Can you describe all of the assets you presently own, including any property or savings?” “Who are the people you wish to help from your estate? Can you explain why you have chosen them?” “Are you aware of anyone who expects to inherit from you but will not be included? Can you explain your reasons for this choice?” and “Why have you made significant changes to your earlier Will or estate plan?” Documenting the client’s responses to these types of questions provides clear evidence of their capacity and understanding.

Determining testamentary capacity when making a will is primarily a legal matter, not a medical one. In some delusion-type cases, expert medical evidence helps.

In other cases, lay witnesses’ evidence carries more weight. With the insights of the deceased’s general practitioner and the solicitor who drafted the Will, particularly influential. This is especially true compared to medical experts who never examined the deceased (Kozak v Berwecki [2008] NSWSC 39). In Lewis v Lewis [2021] NSWCA 168, the appeal was rejected. The mere reading aloud of a Will does not guarantee understanding or approval. A capable testator is not presumed to have known and approved all provisions.

Nonetheless, the court’s decision often benefits greatly from medical experts’ contributions. Moloney v Hayward & Ors [2022] SASC 79 at [276]. In some circumstances, there is probative value of medical evidence to questions of capacity. Still, it is not essential or determinative, as the test for testamentary capacity is a legal test. Lay witnesses, including solicitors, are usually in a position to give probative evidence for determining testamentary capacity. Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. Ultimately, testamentary capacity is a question of fact. 




The testator must be aware of the contents of the Will. They must also authorise those contents at the time of signing. This ensures they understood the implications of their actions. It also ensures the Will genuinely reflects their true intentions. If testamentary capacity is established, the proper execution of the Will creates a presumption. This presumption assumes the testator approved its contents at that time. This presumption can be challenged by any circumstance. Raise a reasonable suspicion or doubt about whether the Will truly shows the testator’s genuine intentions. Once this presumption is challenged, the burden shifts to the proponent. They must affirmatively prove that the testator knew and authorised the contents of the Will. Tobin v Ezekiel [2012] NSWCA 285


Background to the Dispute

Ordinarily, the most recent will governs the distribution of an estate. Still, in this case, the Court needed to decide if the December 2018 and January 2019 wills were valid. They were properly executed yet be invalid due to a lack of testamentary capacity. The Court also had to consider the knowledge and approval of these wills. The deceased died in October 2020 at the age of 96. She had never married and had no children. The Court described her as a “prolific will-maker.” She regularly altered pecuniary legacies over the years. Her treatment of major assets, particularly farmland left to the second respondent, had been remarkably consistent until late 2018.

The Original Decision

The Supreme Court initially had to decide the validity of two late wills. These were made in December 2018 and January 2019. They needed to assess if they were valid expressions of the deceased’s testamentary intentions. Although the documents were formally executed, McIntyre J found that the presumption of testamentary capacity had been displaced. This was due to several factors. These included the deceased’s advanced age, cognitive decline, physical frailty, and the complexity of the wills themselves. McIntyre J concluded that the wills were invalid because these factors caused the deceased to lack testamentary capacity. Medical and lay evidence showed impairments in memory, executive functioning, and decision-making at the relevant time. These concerns were concrete. They directly affected her ability to understand the nature and effect of the wills the deceased was signing.

There was no evidence that the testator understood or approved the significant changes made in the later Wills. These documents represented a clear departure from her established estate plan, and no satisfactory explanation was provided. McIntyre J observed that the main beneficiary was closely involved in preparing and executing the Wills. The solicitor did not independently assess capacity. They did not explain the documents or make certain that independent advice was provided. These factors led to the conclusion that the deceased lacked testamentary capacity. The deceased did not have enough knowledge and approval of the later Wills. The February 2018 Will was admitted to probate.

Key Practitioner Takeaways:

• Always conduct a thorough and independent assessment of testamentary capacity. This is crucial if the client is elderly. Also, be attentive if there are signs of cognitive decline.
• Keep clear, contemporaneous notes detailing the steps taken to set the client’s capacity and understanding of the will’s contents.
• Make sure that the client fully understands the nature and consequences of any significant changes to a long-established estate plan. Document the reasons for such changes.
• Minimise or exclude the involvement of major beneficiaries in the preparation and execution of the will. This helps to avoid allegations of undue influence.
• Give independent legal advice when suspicious circumstances arise. At the very least, offer this advice. Make sure the testator has the chance to consult in private.
• Carefully explain every clause, particularly where there are departures from prior wills or complexity and ambiguity in the terms.
• In cases of doubt, seek independent medical evidence supporting capacity at the relevant time.

In O’DEA v MCINERNEY & ORS (No 2) [2024] SASC 143, McIntyre J accepted the compliance of four wills. The wills adhered to the Wills Act 1936 (SA). All the wills met the requirements. These requirements included formal execution. Each document had been signed by the deceased in the presence of two witnesses and prepared by an experienced solicitor. As a result, the usual presumptions applied. It was presumed that the deceased had testamentary capacity. It was also presumed they knew the contents of the wills and approved them. Yet, those presumptions were displaced concerning the December 2018 and January 2019 wills.

The evidence presented a mixed picture, with both strengths and uncertainties. McIntyre J found persuasive evidence that by late 2018, the deceased was experiencing a significant cognitive decline. Community nurses and other witnesses described confusion and memory loss. They noted difficulty managing finances and problems with hygiene and household maintenance. There was also disorientation about time and place. There was also evidence indicating early dementia. No single factor was determinative. Yet, the combination of these matters raised serious doubts about her capacity. It questioned her ability to understand and evaluate complex testamentary arrangements.

Testamentary capacity is assessed according to the Banks v Goodfellow principles. McIntyre J emphasised that incapacity does not need a diagnosed mental illness. A significant departure from long-standing testamentary intentions, if not adequately explained, itself supports an inference of incapacity. In O’DEA v MCINERNEY & ORS (No 2) [2024] SASC 143, the deceased had left specific farmland. It was designated for the second respondent. This arrangement existed for many years. Earlier Wills included safeguards to guarantee that sale proceeds were used locally for retired priests. In the final two Wills, these gifts were removed and redirected to a distant relative, the first respondent. This represented a significant and unexplained change in her intentions.

The first respondent submitted that the deceased had become disillusioned with the second respondent. The reason was child abuse scandals. Also, there were concerns that the land would be sold for diocesan purposes. The Court did not accept this explanation. Evidence from priests and long-standing acquaintances indicated that the deceased remained a devout Catholic until her death. Her earlier Wills had already addressed concerns about the land’s future use. The Court found that the first respondent’s evidence was inconsistent and lacked independent corroboration.

Extra concerns arose from the first respondent’s close involvement in the preparation and execution of the later Wills. He attended meetings with the solicitor, assisted in arranging witnesses, and retained the documents after execution. This involvement, along with the solicitor’s failure to independently assess capacity, significantly undermined confidence in the later Wills. They did not exclude the beneficiary from discussions. The solicitor did not read the Will to the deceased, given her poor eyesight. Additionally, they did not keep proper records. The execution of one Will with a ‘DRAFT’ watermark further heightened these concerns.

The Court considered these factors. It concluded that the deceased lacked testamentary capacity during the time of the December 2018 and January 2019 Wills. The deceased did not know or approve of their contents. In contrast, there was no persuasive evidence challenging her capacity when she made the February 2018 Will. It reflected her long-standing intentions. That Will was admitted to probate.

On 22 August 2024, the Supreme Court of South Australia upheld the February 2018 will. It rejected the December 2018 and January 2019 wills for want of testamentary capacity, knowledge, and approval. The main beneficiary under the latter Will filed an appeal. It was made to the Court of Appeal (McInerney v D’Ortenzio (formerly O’Dea) & Ors [2026] SASCA 7). The Court granted permission to appeal on all grounds. Nonetheless, it ultimately dismissed the appeal in full, affirming the trial judge’s orders.

Grounds of Appeal and the Court’s Findings

The Court of Appeal ultimately dismissed all five grounds raised on appeal, carefully addressing each in turn. This outcome guides the ensuing analysis of the main appellate issues. It provides context and focus to the doctrinal discussion that follows.

Ground 1: Were the December 2018 and January 2019 Wills Rational?

The appellant argued that the trial judge erred. They disagreed with the finding that the December 2018 and January 2019 wills were not rational on their face.

The Court of Appeal dismissed all five grounds of appeal raised by the appellant. Specifically, concerning the first ground, the Court of Appeal rejected the submission. They determined that the December 2018 and January 2019 wills were not rational on their face. Livesey P and David JA held that McIntyre J’s conclusion was firmly based on the dramatic departure. Those wills represented a significant change from the deceased’s long-standing testamentary intentions. For many years, her estate planning had followed a consistent pattern. The latter Will affected a considerable redistribution of major assets without any satisfactory explanation. In those circumstances, it was open to McIntyre J to conclude that the wills lacked facial rationality. No error was demonstrated in that reasoning.

Doyle JA made observations about the concept of rationality. Nonetheless, he considered it unnecessary to decide the ground. This was due to the conclusions reached on the remaining grounds.

Ground 2: Whether the Presumption of Testamentary Capacity Was Rebutted

The appellant contended that the trial judge was wrong to find that the presumption of testamentary capacity had been displaced. Livesey P and David JA held that McIntyre J was entitled to reach that conclusion. This was based on the totality of the evidence. The evidence included contemporaneous medical records, nursing observations, and other evidence pointing to cognitive decline.

The Court of Appeal emphasised that McIntyre J did not rely solely on medical evidence. Instead, the decision considered several factors. These included the deceased’s age and frailty. It also took into account functional decline and the unexplained changes to her testamentary arrangements. Collectively, these matters were capable of raising a real doubt as to testamentary capacity.

There was no legal or factual error in the trial judge’s approach.

Ground 3: Failure to Prove Testamentary Capacity for the Later Wills

The appellant further argued that, even if the presumption was rebutted, the trial judge erred. The judge incorrectly found that the appellant had neglected to affirmatively prove testamentary capacity at the relevant times. The Court of Appeal held that McIntyre J correctly identified where the burden of proof lay. McIntyre J was entitled to conclude that it had not been discharged. On the balance of probabilities, the evidence did not show that the deceased had testamentary capacity. This was when executing the December 2018 and January 2019 wills.

The Court of Appeal found no error in the evaluation of McIntyre J. They found no error in the evidence. Her Honour’s ultimate conclusion on this issue was also correct.

Ground 4: Knowledge and Approval of the December 2018 and January 2019 Wills

The appellant also challenged the finding. The presumption of knowledge and approval was rebutted. The appellant had not proved knowledge and approval.

The Court of Appeal confirmed that the same suspicious circumstances relevant to capacity were significant. These include the deceased’s cognitive state, her eyesight difficulties, and the complexity of the wills. The beneficiary’s involvement in their preparation was also noted. These factors were capable of displacing the presumption. There was no error in that reasoning. McIntyre J rightfully found that the appellant was not capable of demonstrating on the balance of probabilities. The deceased did not know the contents of the later wills. Nor had the propounder shown that the deceased approved them.

Ground 5: Assessment of Witness Evidence

Finally, the appellant argued that the trial judge erred in her assessment of the evidence of Gregory Anderson. He is the solicitor. The assessment of John Robbins’s evidence was also questioned. Robbins is a close friend of the deceased.

In dismissing this ground, the Court of Appeal held that McIntyre J’s treatment of their evidence was careful. It was well within the range of findings open to Her Honour. There was no misapplication of principle. There was no demonstrable error in the way their evidence was weighed. It was evaluated correctly regarding testamentary capacity, knowledge, and approval.

Alternative Contention

The Court concluded on the primary grounds of appeal. Thus, it was unnecessary to deal with the notice of a different contention.

Costs Appeal
Both the appellant and the second respondent sought leave. They intended to appeal the costs orders made by McIntyre J on 11 December 2024.

The Court of Appeal

The Court of Appeal refused leave. Livesey P and David JA, with Doyle JA agreeing, held there was no basis for appellate intervention. This decision concerned McIntyre J’s exercise of discretion as to costs.

Outcome

Although leave to appeal was granted on all grounds, the appeal was dismissed in full. The February 2018 will remained admitted to probate, and the December 2018 and January 2019 wills were held invalid. The costs orders made at first instance were left undisturbed.

O’Dea underscores the importance of clear professional safeguards when preparing and executing Wills. This is crucial, particularly where there are significant changes to estate plans. It is also important if there are concerns about capacity. Practitioners should conduct thorough capacity assessments, give independent advice, and keep detailed records. Testators should explain major changes and seek appropriate advice. Procedural compliance alone is insufficient if there are doubts about intention or capacity. Thoroughness is needed to guarantee certainty.

For example, if an elderly client has always left her estate to her children, clarify the reason for the change. Why do they want to leave most of it to a distant cousin? Take specific steps to protect the validity of the Will. Reduce the risk of future disputes about capacity or undue influence.

Checklist for Documenting Testamentary Capacity and Protecting Will Validity:

• Carefully assess and document the client’s testamentary capacity.
• Arrange for an independent medical evaluation if there are any doubts about capacity.
• Meet privately with the client. away from new or major beneficiaries. Discuss reasons for any significant change in the beneficiary.
• Clearly record the client’s explanation for the changes, preferably in their own words.
• Make sure no new or major beneficiary is involved or available during the preparation and execution of the Will.
• Explain the implications of the Will and any significant changes from prior testaments to the client and document this explanation.
• Offer the opportunity for the client to get independent legal advice, especially where suspicious circumstances arise.

Practitioners should regularly consider how to improve their practices to better record a client’s intentions and capacity in future matters.