1. There is little doubt that:
* People are living longer and with increasing age, may experience some deterioration in mental capacity; and
* There are an increasing number of Court challenges to Wills, either because of failed “testamentary capacity” or because a person claims to have been left out, or inadequately provided for in a Will.
2. In 2017, the Will of the late Frank Ryan (Frank) was challenged in the NSW Supreme Court, on the grounds of his lack of capacity to make a Will. Frank died in 2014 aged 90. He made his last Will on 24 January 2013, when he revoked an earlier Will which had been made in June 2011. Frank was survived by his three mature aged adult children, as well as his de facto partner, Deirdre Molloy (Deirdre). Frank and Deirdre had commenced living together 24 years before he died.
3. In the 2011 Will, Frank had bequeathed his Estate to his three surviving children. In the later 2013 Will, Frank bequeathed his Estate to his three surviving children and Deirdre, as to one quarter each.
4. Frank met with his solicitor, Ms Dalton in January 2013 because Frank wanted to change his Will. Dalton made extensive notes. She went through the Will with Frank to make sure that it reflected what he wanted, and he had agreed that it did so. According to Dalton’s later evidence, Frank had volunteered to her that:
“He just didn’t feel right about not providing for Deirdre.“
5. A consultant psychiatrist, Dr W, gave evidence in which he concluded that:
* Frank was able to comprehend and appreciate the claims to which he ought to give effect;
* Frank experienced mild to moderate dementia at the time of the 2013 Will;
* Frank’s hostel care staff had reported that he was confused and lacked alertness;
* This raised the question of whether there were intervals of sufficiently lucidity for him to make his Will competently; and
* “In my opinion, it is very unlikely that Frances Ryan retained testamentary capacity on 24 January 2013″.
6. An important factor, in Dr W’s evidence was his concern about Frank’s failure to have offered any explanation for changing his Will to make Deirdre a beneficiary. At the time of Dr W’s evidence, there was no record of this explanation. Critically, Dalton’s evidence that Frank “didn’t feel right about not providing for Deirdre“, only emerged after Dr W had given his evidence.
7. The Court found that Frank understood the nature and effect of making a Will, that he knew the nature and extent of his assets, and was able to comprehend and appreciate the claims to which he ought to give effect. Despite that, the Court held that:
“The real question was whether he was affected by a mental disorder which so influenced his mind in relation to the disposal of his assets that the Court could not be satisfied, on the balance of probabilities that in regard to the seriousness of the matter to be proved, the 2013 Will was the last Will of a free and capable testator.“
8.Ultimately the Court found that there was doubt that Frank possessed sound mind, memory and understanding at the time of execution of the Will, and the Court added “There is no evidence of her (Dalton) asking why he was changing his Will in the way he was.” It is important to note that, in this regard, Dalton’s evidence that Frank had said that he “didn’t feel right about not providing for Deirdre” was excluded, not because it was not believed, but because it was tendered too late to be taken into account – a devastating finding and a devastating outcome for Deirdre.