In the recent case of Le Bon & Ors v Lili & Anor [2013] VSC 431, the question for determination was whether the deceased, who was suffering from dementia, had testamentary capacity when she made her last Will. If she did not, her previous Will stand.

Under the last Will, the deceased left:

  • $1,000,000 to her sister; and
  • the balance of her estate valued at $2,680,999, to various pecuniary legacies (totalling $470,000) and educational institutions.

In comparison, under the previous Will, the deceased left:

  • various pecuniary legacies amounting to $105,000; and
  • the residue (which would be over $2.5 million) to her sister.

In order to find that the last Will was proved, the Court needed to be satisfied that:

  • when the deceased gave her instructions to prepare the last Will, she:
    (a) was aware of and appreciate the significance of the act which she is embarking upon;
    (b) was aware in general terms of character, extent, and value of the estate with which she is dealing;
    (c) was aware of those who might reasonably be thought to have claims upon her bounty; and
    (d) had the ability to evaluate and discriminate between the respective strengths of those claims.
  • the Will presented to the deceased faithfully reflected the deceased’s instructions to her solicitor; and
  • when the deceased signed the last Will, she was able to understand, and believed, that she was signing a Will that had been prepared by her solicitor to make disposition of her property in accordance with instructions previously given by her.

Having considered the evidence available, the Court determined that:

  • the deceased did have testamentary capacity and knew and approved of the contents of the instructions that were conveyed on her behalf to her solicitor;
  • there was an absence of affirmative evidence to suggest that the deceased had the requisite understanding at the time she executed the last Will – rather the objective circumstances point in the opposite direction.

Accordingly, the application for grant of probate of the last Will was refused.

To find out how Armstrong Lawyers may assist you in relation to Estate Planning or Will Disputes, feel free to browse our Wills and Estates page.