29 November 2021

The Doctor Says Mum Has Dementia. Does That Mean She Can’t Make a New Valid Will?

Keith Schrauf

The recent Queensland Supreme Court decision of Re Massey (deceased) [2021] QSC 205 serves as a timely reminder that a diagnosis of dementia does not necessarily prevent a person from making a valid Will.

Background Facts

Mrs Massey died on 19 August 1992 leaving a Will dated 14 May 1990 under which she gave her estate to three of her seven children. She had made an earlier Will dated 13 May 1986 which left her entire estate to another child of hers.

An order to administer Mrs Massey’s estate according to the 1990 Will was granted to The Public Trustee in 1992.

In 1993, the sole beneficiary under Mrs Massey’s 1986 Will filed an application asking the court to revoke the order to administer the 1990 Will and to instead issue a Grant of Probate of the 1986 Will. In support of that application, she filed an affidavit stating that:

  • Mrs Massey was admitted to hospital in early 1989 for continuous monitoring. She remained in hospital until she died in 1992;
  • while hospitalised, Mrs Massey did not recognise many family members who visited her;
  • in early 1990, Mrs Massey showed signs of not being well physically or mentally. She was vague, very forgetful, had trouble recognising people and was on medication from her doctor. She had to be constantly monitored.

An affidavit by Mrs Massey’s general practitioner Dr Merlo was also filed in support of the application. Dr Merlo stated:

  • He first noted early signs of dementia in Mrs Massey on 30 March 1987;
  • he noted in his records on 12 May 1990 (two days before the 1990 Will was signed) that Mrs Massey:
    • had short-term memory loss;
    • was disoriented in time;
    • had not been taking her medication;
    • was living by herself but with significant family support;
    • was suffering from confusion;
    • showed signs of vagueness;
    • was clearly suffering from dementia;
    • was progressively deteriorating;
  • his records of 12 May 1990 noted that dementia was a significant condition;
  • at the time of Mrs Massey’s death (in August 1992) she was severely demented;
  • it was his medical opinion that Mrs Massey was incapable of making a valid Will on 14 May 1990.

Resolution of 1993 Application

In 1996 Mrs Massey’s children signed a deed of settlement agreeing not to dispute the validity of the 1990 Will but to interpret it in a way that allowed for the three beneficiaries of that Will to live in houses owned by the estate during their lifetimes. Those beneficiaries were required to pay the rates and insurance on the houses.

New Court Proceedings

The conditions of occupancy were subsequently breached. This resulted in The Public Trustee incurring ongoing expenses. The Public Trustee was also denied access to inspect the condition of the houses and value them for insurance purposes.

The Public Trustee issued new proceedings asking the court:

  • to revoke the previous order to administer the estate according to Mrs Massey’s 1990 Will, pronounce that it was a valid Will and grant probate of it to a family member who would then take over administration of the estate in place of The Public Trustee; or
  • alternatively, to pronounce the 1986 Will valid.

The children living in the houses wanted the deed of settlement cancelled and the estate distributed according to the 1990 Will.

Evidence in New Court Proceedings

At the hearing of the new proceeding, the court considered the affidavit evidence of Dr Merlo and the family member filed in support of the 1993 application.

The court also heard evidence from other members of the family, most of whom stated that Mrs Massey had no problem recognising them when they visited. They were variously of the view that she was “in her right mind”, her “memory was fine”, her “memory was great”, and her “mind was excellent”.

Reverend Young and his wife also gave evidence in the proceedings. Not only were they the witnesses to the signing of the 1990 Will, they had each known Mrs Masey for a considerable period of time beforehand.

The court placed greater reliance on Reverend and Mrs Young’s evidence regarding Mrs Massey’s capacity and state of mind than it did on the evidence given by the members of the family. Unlike the family members, Reverend and Mrs Young stood to gain nothing from the outcome of the case.

Reverend Young told the Court that he was a family friend. At the time of her death, he had known Mrs Massey for over 30 years. She showed no signs of not recognising him or members of her family, she did not have trouble with her memory and she did not appear confused or disoriented.

Mrs Young said she had known Mrs Massey for about 12–14 years prior to her death. She did not have any concerns regarding Mrs Massey’s ability to recognise and understand her or her family and did not remember Mrs Massey having problems with her memory.

The court considered the 1990 Will to be coherent. Nothing in it suggested that Mrs Massey lacked testamentary capacity.

While the court accepted that Mrs Massey may have suffered from dementia in the years before her death, the evidence of Rev and Mrs Young supported the conclusion that Mrs Massey had capacity when she signed the 1990 Will.

The court preferred the evidence of Rev and Mrs Young over the affidavit evidence of Dr Merlo in the 1993 proceedings. In the court’s view, Dr Merlo’s record that Mrs Massey was disorientated, confused and suffering memory loss two days before she made the 1990 Will:

  • was not evidence of her cognitive ability on the day she made the 1990 Will;
  • nor was it evidence of a sufficient lack of capacity to understand how, and to whom, she is to dispose of her estate.

The court also commented that while medical evidence going to the elements of the legal test for testamentary capacity may be relevant, it is not always determinative.

The court pronounced the 1990 Will valid and granted probate of the Will to a member of Mrs Massey’s family.


The fact that a medical practitioner has diagnosed a person with dementia does not necessarily mean that person lacks the legal capacity to make or replace a valid Will.

If you, or someone you know, requires advice about making or replacing a Will after a diagnosis of dementia or a similar condition, contact Keith Schrauf.


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