18 August 2021
As the rates of dementia in our society increase, courts are being increasingly asked to consider matters relating to whether or not a person had capacity to make documents such as a will. Usually, in the case of wills, the person has already passed away. The court is then faced with the difficult task of examining the circumstances and evidence leading up to when that person created the document.
This was the case in the recent Queensland Court of Appeal decision of Greer v Greer. Some of the facts of this case are not unusual in that many families struggle in trying to make arrangements for ageing parents. The parents in this case transferred the title of their property to their son by way of gift. In exchange, the son intended to buy a replacement property and build a granny flat for the parents to live in. Unfortunately, the father's health declined, delays were experienced, and the father needed to be placed into care before the construction of the granny flat was completed.
The father then started to rapidly lose capacity as his health declined, but was said to be aggrieved with being placed into care before the granny flat was completed. He contacted another one of his children to tell her of the issues. Despite being aware of her father's capacity problems, the daughter brought in a will kit and filled it in on her father's behalf. The son, who was supposed to build the granny flat, was excluded from this homemade will, and the daughter was then included as a beneficiary along with some of her other siblings.
Given that the daughter was involved in making the will and then subsequently benefited from it, the legal principle of suspicious circumstances arose in this case. Once these circumstances occur, the person propounding that the last will is valid must prove that the testator had capacity and understood the nature and effect of what they were doing. On the evidence, the court found that the father lacked capacity to make a will, which meant that the will he had made years before was deemed to be the last will of the testator, not the will kit.
This case illustrates the importance of seeking professional advice in implementing plans to assist ageing parents and modifying those plans if circumstances change to avoid family disputes.
Authors: Kylie Wilson
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