Probate Granted for First Will Despite Lack of Testamentary Capacity for Second Will

The court granted probate of the first will and declared that the testator had testamentary capacity at the time of making it, despite lacking capacity due to Alzheimer's disease when making the second will.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] [2024] NSWSC 579 Hearing dates: 10 May 2024 Date of orders: 10 May 2024 Decision date: 10 May 2024 Jurisdiction: Equity - Succession & Probate List - Probate Before: Hammerschlag CJ in Eq Decision: Probate granted of first will and declaration made that the testator had testamentary capacity Catchwords: SUCCESSION – Probate - Where deceased made two wills and the evidence is that at the time of the second will he lacked testamentary capacity due to Alzheimer's disease – Although orders were sought by consent the Court must satisfy itself on an evidentiary foundation that there was lack of capacity at the time of the second will and capacity at the time of the first will –

HELD: Probate granted of the first will and a declaration made that at the time he made it the testator had testamentary capacity Cases Cited: Lucas v Konakas [2014] NSWSC 786 Category: Principal judgment Parties: [NAME] (Plaintiff) [NAME] (First Defendant) [NAME] (Second Defendant) Representation: Counsel: [redacted]

Solicitors: [redacted] [NAME] (Defendants) File Number(s): 2022/00048767 Publication restriction: Nil

EX TEMPORE

JUDGMENT (Revised) 1. [NAME] (the Deceased) died between 5 January 2022 and 11 January 2022.

2. Relevantly, he made two homemade wills, one on 24 October 2013 (the First Will) and the other on 10 December 2019 (the Second Will).

3. The Plaintiff, the Deceased's sister, seeks a grant of probate of the First Will. The Plaintiff also seeks a declaration that the Second Will is invalid as the Will of the Deceased.

4. The Executor appointed under the First Will has died.

5. The Defendants are the named Executors in the Second Will. They do not oppose the grant and submit to the making of all orders sought by the Plaintiff.

6. The estate comprises cash at bank of approximately $642,000, and real property at Bateau Bay, NSW valued at $700,000. There are also some shares worth approximately $31,000.

7. Notwithstanding consent and the absence of a contradictor, it is incumbent on the Court to determine, on an evidentiary foundation and exercising independent judgment, whether the orders should be made: Lucas v Konakas [2014] NSWSC 786 at [259] per Lindsay J.

8. Counsel for the Plaintiff, [NAME], provided comprehensive written submissions dated 23 April 2024 which I have marked MFI-1 and which will be retained with the papers.

9. On the application, the Plaintiff read the following plethora of affidavits: 1. [NAME] 24 March 2022, 19 July 2022 and 15 August 20203; 2. [NAME] 19 July 2022 and 24 March 2022; 3. [NAME] 5 April 2023 and 15 August 2023; 4. [NAME] 30 September 2023; 5. [NAME] 6 March 2024, 3 April 2024, 26 April 2024 and 30 April 2024; and 6. [NAME] 23 April 2024.

1. Probate of the Second Will was, correctly, declined by the Registrar, no doubt because there was material calling into question the Deceased's testamentary capacity at the time.

2. The Deceased was one of 11 children. The Deceased was not married at the time of either Will and has no children. The terms of the Wills differ slightly. It is not necessary to intrude into that matter.

3. Evidence from the Deceased's treating general practitioner in 2022 is that the Deceased would have struggled to provide informed consent on or about 10 December 2019.

4. The material establishes, to my satisfaction, that, at the time of the Second Will, the Deceased was suffering from Alzheimer's disease and lacked testamentary capacity. I also find that, at the time of the First Will, the Deceased had testamentary capacity.

5. Every interested person has been given notice of this application. No one seeks to propound the later Will.

6. In the circumstances, I will order that there be a grant of probate of the First Will to the Plaintiff in solemn form and the Court will declare that at the time of that will the Deceased had testamentary capacity, although that conclusion follows for the order for a grant.

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Amendments 28 May 2024 - Updated coversheet to insert catchwords and decision DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024