14 September 2021

Capacity to Make a Will – Who Needs to Prove What and Why is it Important?

Keith Schrauf

The recent decision of Greer v Greer [2021] QCA 143 reinforces the need to not only make sure that capacity to make a valid Will exists when the Will is made BUT where doubt exists to also make sure that evidence of capacity is created and preserved in case a dispute arises later.


Mr Greer was 80 years old when he made a new Will on 2 March 2017 with the assistance of his daughter Karyn. The new Will left a car to Karyn’s husband and divided the balance of the estate equally between Mr Greer’s three children of his first marriage. Karyn was one of those children.

The new Will replaced a Will Mr Greer had made in 2001. The 2001 Will effectively left his entire estate to Stuart, the only biological child of Mr Greer’s second marriage.

When he made the new Will Mr Greer had a long list of medical problems. Relevantly, they included severe, chronic small vessel ischaemic changes to his brain which might be associated with cognitive impairment.

Mr Greer was disenchanted with Stuart when he made the 2017 Will. After Mr Greer’s second wife had died in 2015, he had entered into a written agreement with Stuart and Stuart’s wife. The agreement involved Mr Greer transferring his house to them.

They were to sell it and use part of the sale proceeds to build a granny flat for Mr Greer on an acreage property they were in the process of buying. The rest of the sale proceeds were to be used for Mr Greer’s maintenance, care and living expenses during his lifetime. Any amount left over would belong to Stuart and his wife.

The purchase of the acreage property fell through. The proceeds from the sale of Mr Greer’s property were instead used to buy a two-storey suburban home. It was Stuart’s intention that after carrying out some structural repairs he and his wife would live upstairs, and Mr Greer would live in the downstairs section.

Temporary arrangements were made to accommodate Mr Greer in a portion of the house next to where Stuart and his wife were then living until the repairs to the two-storey house were completed. Stuart’s wife also gave up her employment to assist with Mr Greer’s care.

Mr Greer relocated to the downstairs portion of the two-storey house in November 2016. According to Stuart, Mr Greer’s cognitive and physical function was declining rapidly by then.

In December 2016 and again in January 2017 Mr Greer spent time in hospital following falls. On his release from hospital after the second fall Mr Greer was placed in a respite care facility for a period of two weeks. The respite care period was extended when Stuart’s son broke his leg, reducing the amount of time Stuart’s wife could devote to Mr Greer’s care.

An aged care worker acquaintance visited Mr Greer at the respite care facility shortly before the new Will was made. According to her, Mr Greer did not seem to understand that he was in respite care. He seemed to think he had been permanently put into a nursing home. He was angry with Stuart. He had given Stuart all his money and now wanted it back. He blamed Stuart for not building the granny flat.

Karyn was contacted at Mr Greer’s request. Karyn had not been in touch with Mr Greer during the previous 12 months due to a falling out over the contents of Mr Greer’s 2001 Will.

According to Karyn, Mr Greer explained his concerns about Stuart in a telephone call, apologised for the estrangement, sought her help and told her that Stuart held an Enduring Power of Attorney which Mr Greer wanted to change.

Karyn visited Mr Greer at the respite care facility on 26 February 2017. During the visit Mr Greer suggested changing his Will but also said that the first thing he wanted to do was remove Stuart as his attorney.

Steps Taken to Address Capacity

Karen spoke to the facility manager about changing the Enduring Power of Attorney. He told her that it would first be necessary for Mr Greer’s capacity to be assessed by a doctor.

The facility doctor declined to do an assessment test because he did not know Mr Greer well enough. On 1 March 2017 Karen tried to have Mr Greer assessed by his usual GP but was told it would be necessary to make another appointment for that assessment to be carried out.

It seems that Karyn sought assistance from a community legal centre regarding the requirements for revoking the Enduring Power of Attorney and making a new Will. A social worker attached to the centre spoke by telephone to Mr Greer on 1 March 2017 and made an unscheduled visit later that day, accompanied by a young solicitor from the centre.

The solicitor made a file note. It recorded that the purpose of the visit was mostly to initially assess capacity. It also recorded that they did not have much time to talk to Mr Greer.

The file note also contained some comments about future requirements. The first step was “mental/capacity assessment needed”. Depending on the result, the solicitor thought that Mr Greer might have capacity to revoke his Enduring Power of Attorney.

On the issue of capacity to make a Will, the solicitor noted that Mr Greer understood her, responded appropriately and gave a consistent story. Those factors favoured his having capacity.

She also recorded that Mr Greer had forgotten the name of the suburb where Stuart and his wife had bought the two-storey home and the address of his own former home. He did not recall what year it was. At times during conversation, Mr Greer stopped talking mid-sentence and lost his place. These factors pointed to a possible absence of capacity.

The following day, without any assessment having been carried out, Karyn assisted Mr Greer to make a new Will using a purchased Will Kit.

Mr Greer died in July 2017 aged 80. Dispute arose about the validity of Mr Greer’s new Will.

Relevant Legal Principles

The capacity to make a valid Will is known as “testamentary capacity”.

The modern test for testamentary capacity is not, in fact, so modern. Its essence was formulated way back in 1870 in the English case of Banks v Goodfellow. Subsequent cases have refined the fundamental requirements. The requirements are conveniently summarised as:

  • Awareness of the purpose and effect of a Will;
  • Awareness, at least in general terms, of the nature, extent and value of the estate;
  • awareness of the people reasonably expected to be included as beneficiaries and the basis for that expectation;
  • the ability to evaluate and discriminate between the strength of the claims of each of those people.

It is not however necessary to demonstrate perfect levels of mental function to establish testamentary capacity. As Kirby P said in the Estate of Griffith (1995) 217 ALR 284 “many Wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or property by Will”.

In Greer, Bond JA said “the law is clear that it does not necessarily follow from the mere fact that a testator had some form of psychological or mental condition or deterioration which detrimentally affected cognition or judgement, that a proponent of the testator’s Will cannot establish affirmatively that the testator had testamentary capacity at the time of executing the Will. The focus must be on what the evidence in the particular case shows as to capacity at the relevant time…………….Evidence might, for example, show that while cognition or judgement was detrimentally affected by some psychological or mental condition, it was not sufficiently affected as to deprive the testator of testamentary capacity. Or the evidence might show………..that a Will was signed during a lucid interval”.

When a person’s testamentary capacity is disputed after his or her death four major factors come into play:

Factor 1 – The responsibility for establishing that the Willmaker had testamentary capacity rests with the person seeking to enforce the terms of that Will (the “proponent”). This is known as the “onus of proof”. The proponent must satisfy the court that the Willmaker had capacity;

Factor 2 – If the proponent can satisfy the court that the Will is rational on its face, testamentary capacity is presumed;

Factor 3 – If the opponent to the Will can establish doubt regarding testamentary capacity, the Factor 2 presumption regarding testamentary capacity is displaced;

Factor 4 – Once the presumption of testamentary capacity is displaced, Factor 1 comes back into play – the proponent of the Will has the onus of proving that testamentary capacity existed when the Will was signed.

Application of Legal Principles

The new Will appointed Mr Greer’s son Mark as executor. Like Karyn, Mark was a child of Mr Greer’s first marriage. Responsibility for proving that Mr Greer had testamentary capacity when he signed the new Will therefore fell to Mark.

Through his lawyers, Mark sought to establish that Mr Greer’s testamentary capacity was presumed, because the new Will was rational on its face (Factor 2 above). Had he been successful in doing so that would have been the end of the matter unless Stuart was then able to establish doubt regarding testamentary capacity. However, the primary judge was not satisfied that the Will was rational on its face. The evidence reflected that

  • the Will favoured three of Mr Greer’s five children, mentioned a fourth child (Stuart) adversely but make no mention at all of a fifth, adopted, child;
  • the Will gifted a car to Karyn’s husband in circumstances where Karyn’s marriage took place in 2015 but Karyn was estranged from Mr Greer between January 2016 and January 2017;
  • at the time the Will was made Karyn protested the gift of the car, telling Mr Greer that she and her husband already had two cars and, in any event, they lived on a boat and had no garage. Despite that protest, Mr Greer was insistent;
  • The Will appointed Mark as executor even though Mark had no contact with Mr Greer between the late 1960s and the late 1980s or between 2000 and 2015. Mark saw Mr Greer at Karyn’s wedding in 2015 and again in January and May 2016. He did not go to the funeral of Mr Greer’s second wife, did not take any interest in how Mr Greer was being cared for after his second wife’s death, and had only brief telephone interactions with Mr Greer while Mr Greer was in respite care.

The presumption of testamentary capacity was displaced because the court did not consider the new Will rational on its face. The onus then fell to Mark as executor of the Will to prove that Mr Greer had testamentary capacity when he made it.

The difficulty Mark then faced was that no one had carried out an assessment of Mr Greer’s capacity, applying the fundamental requirements identified in Banks v Goodfellow and refined in subsequent court decisions.

Available Evidence Regarding Capacity

The evidence of the aged care worker who visited Mr Greer at the respite care facility lacked sufficient detail to help draw a conclusion regarding testamentary capacity.

The social worker attached to the community legal centre made no attempt to assess whether Mr Greer had capacity to make a Will and therefore did not assist.

The solicitor from the community legal centre was not assessing testamentary capacity at the time of her visit to Mr Greer. As a result, the solicitor did not investigate matters pertinent to the question of testamentary capacity.

Mark gave evidence that Mr Greer told him not to tell Stuart or another sister, Lisa, about the new Will because they had ripped him off. The judge thought this odd because the new Will made Lisa an equal beneficiary with Mark and Karyn.

Karyn gave evidence that she bought a Will Kit and took it to the respite care facility on 2 March 2017. She asked Mr Greer what he wanted to say and recorded his wishes in the Will. She read the Will back to him and he also read it. She did not think Mr Greer was suffering from hallucinations or delusions. She had “no concerns whatsoever” about Mr Greer’s capacity to think accurately and clearly.

Against this, evidence was produced that in a complaint Karyn made to the Public Guardian on Mr Greer’s behalf on 10 March 2017 she stated that Mr Greer “had difficulty in maintaining cognitive conversation and recall. He is terribly emaciated, extremely frail and very weak. He is unable to care for himself, but believes he ‘still can’. He now requires a high level of nursing support.”

Karyn had agreed in cross examination that Mr Greer’s condition when the Will was made on 2 March 2017 was the same as it was on 10 March 2017.

The trial judge did not attach much weight to the evidence given by Karyn or Mark because they had both a financial and an emotional interest in the outcome of the dispute.

While Mr Greer was hospitalised in January 2017 (before the new Will was made), he was reviewed by Dr Roberts, an experienced specialist physician and endocrinologist. Dr Roberts gave evidence that he was aware of Mr Greer’s previous hospitalisation and a decision needed to be made about his future accommodation. Mr Greer’s capacity to make those decisions was at issue. After his review, Dr Roberts remained unclear about Mr Greer’s ability to make complex decisions so he asked Dr Fleury, a geriatrician, to examine him.

Assessment tests requested by Dr Roberts indicated a moderately severe impairment of cognition. Mr Greer had issues with memory and with executive functioning, including the ability to take on board complex ideas, way up complex information, way up opposing ideas, pros and cons and make complex decisions.

Dr Roberts also gave evidence that when Mr Greer returned to hospital on 6 March 2017 (four days after the new Will was made) there was no improvement. He appeared confused. He thought he was in Lismore. He did not know his age, although he did know his date of birth. He did not know what day it was. He said that he had four children but could recall only two of their names. He did not recall where he had been living recently.

Dr Fleury gave evidence that in January 2017 Mr Greer was assessed as having capacity for “lifestyle decisions” but was inconsistent about where to live. One option was to apologise to Stuart and his wife. Another was “going out bush”.

Dr Fleury assessed Mr Greer again on 8 March 2017 (6 days after the new Will was signed). The assessment related to Mr Greer’s capacity to change his Enduring Power of Attorney.

Dr Fleury was not able to take a coherent history as to Mr Greer’s change in thinking between wanting Stuart to act as his attorney in January and wanting Karyn or Mark to do so in March. She concluded that Mr Greer lacked capacity to revoke his Enduring Power of Attorney because he could not understand when an Enduring Power of Attorney would operate to allow the attorney to make decisions and could not understand the effect of the decisions made by the attorney. When she tried to explain these matters to Mr Greer he “quickly got muddled”.

A report was commissioned from Professor Byrne, a psychiatrist with a subspecialty in dementia. Professor Byrne had not examined Mr Greer. His conclusion that Mr Greer had mild to moderate dementia when the new Will was made on 2 March 2017 was based on a review of medical records and test results.

Court’s Decision

On the evidence before her, the primary judge concluded that Mr Greer did not have testamentary capacity when he made his new Will. However, she did comment that:

“In a way, these are quite crude indicators as to whether or not [Mr Greer] may not have been able to remember who had a claim on his bounty and what the basis for the claim was. There is, however, no more focused evidence, because nobody discussed these matters with (Mr Greer) between January and March 2017”.

The trial judge’s decision was upheld on appeal.

Key Takeaways

The important takeaways are:

  • The outcome may have been different if:
    • Mr Greer’s testamentary capacity been properly assessed at the time he made his new Will; and
    • details of the assessment had been preserved for presentation to the court if needed;
  • The fact that Mr Greer had a cognitive impairment did not, by itself, prevent him from making a valid Will.
  • Had a proper assessment of testamentary capacity been carried out, Mark and Karyn may been in a position to satisfy the court that Mr Greer was aware of the purpose and effect of a Will, aware at least in general terms of the nature, extent and value of his estate, aware of the people reasonably expected to be included as beneficiaries and the basis for that expectation and that he had the ability to evaluate and discriminate between the strength of the claims of those people. If that had occurred, the challenge to the new Will may have been defeated.

If you, or someone you know, has a cognitive impairment or is of advanced years and wishes to make a new Will, contact Keith Schrauf for advice before proceeding.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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