ByLawyers News and Updates

101 Succession Answers – QLD

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Two new Supreme Court cases have been added to the By Lawyers reference manual 101 Succession Answers (QLD).

In Re Chambers (dec’d) 2023 QSC 230 irregularities with signing a will did not invalidate it. The testator and the witnesses had missed signing parts of a two-page, pre-printed, will form. The court found there was no question that the testator intended the document to be a testamentary instrument. The evidence showed that he signed it, the two witnesses were both present and saw him sign it, and they each signed the will in his presence.

In Re Briggs (dec’d) [2023] QSC 226 the issue of capacity was determined without expert medical evidence. Letters written by two treating doctors shortly before the dates of the relevant will certifying the deceased did not have capacity for decision-making were enough for the court to find she had no testamentary capacity.

Interestingly, both of these cases were determined without oral evidence, under r 489 of the Uniform Civil Procedure Rules 1999 (QLD). This can occur in any case, on the application of a party, unless the court thinks it inappropriate. In Briggs the court noted:

Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule. Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.

101 Succession Answers (QLD) is available in the Reference Materials folder in Folder A. Getting the matter underway on all succession related matter plans: Probate, Letters of Administration, Family Provision Claim, Wills, Powers of Attorney and Advance Health Directives.

Testamentary capacity checklist

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A testamentary capacity checklist has been added to the matter plans in all By Lawyers will guides. This helpful precedent distills the critical information that practitioners must elicit to properly assess capacity. It is designed to assist lawyers both when taking instructions and when the will is being executed, whether in the office or at the client’s bedside.

Whether or not a client has testamentary capacity is not calculated via a legislated formula but derived from case law. It has been described as requiring time, situation, person, and task specific focus on a testator’s ability to remember, reflect, and reason.

The cases, starting from Banks v Goodfellow (1870) LR 5 QB 549 require a testator to understand:

  • what it means to be making a will;
  • the assets they have and are leaving to others;
  • the obligation owed to those who could make a claim on the estate; and
  • whether or not they are affected by a delusion that influences the disposal of their assets.

The Court determines testamentary capacity on the facts and circumstances of each case.

In Star v Miller [2021] NSWSC 426, the court said that, when taking instructions, it is prudent for lawyers to ascertain the client’s capacity and the possibility of undue influence by asking non-leading questions to determine the facts and circumstances of each case. The By Lawyers testamentary capacity checklist includes such questions.

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at 107, the court suggests that where an elderly client is being cared for by someone or is residing in an aged care facility, it is prudent to ask both clients and their carers whether there is any reason to be concerned about capacity. The By Lawyers testamentary capacity checklist prompts for these inquiries to be made.

The checklist was suggested by one of our subscribers. We worked with our authors to draft a document that is as short and simple as possible but protects practitioners by covering all necessary considerations. The checklist should be used in conjunction with the By Lawyers Wills retainer instructions.

Testamentary capacity

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Testamentary capacity was considered in a recent Victorian Supreme Court case.

The court found In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592 that the then 95-year-old testator had capacity. Her will in which she made no provision for one of her two adult sons was admitted to probate.

Of importance in the court’s decision was evidence from the lawyer who took the instructions and drew the will. This was not the testator’s usual solicitor. Her long-term solicitor, one of the executors of the will, had referred the testator to another solicitor, a specialist in wills. He had taken comprehensive instructions and made appropriate notes. He also sought a medical report from the testator’s usual doctor.

The evidence of the testator’s doctor impressed the court and it was preferred to evidence from expert medical practitioners led by both parties. The experts gave opinions based on records, but had not seen the testator.

One of the experts noted a ‘…general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if [the testator] had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity‘. That is an important point for solicitors taking instructions from will makers to bear in mind.

The case includes, at [126] – [133], an analysis of the cases on proof of testamentary capacity. The court noted that ‘The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity‘.

The statement of Kirby P in Re Griffith (1995) 217 ALR 284, 294 that the freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’ was also cited with approval.

This useful case on testamentary capacity has been added to the By Lawyers 101 Succession Answers (NSW) publication. This valuable resource is found in the Reference Materials folder in the Wills, Estates, Family Provision Claims, and Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning guides.

Wills and powers of attorney – Costing & Storage

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Costing wills and powers can be difficult. It is often not clear at the outset the extent of work which will be required. While many wills are ‘simple’, the complexity of a client’s financial position or their family arrangements can mean hours of time spent taking and confirming instructions and sometimes reviewing documents such as their self managed superannuation fund deed, or a family trust deed. The intended uses for a power of attorney are many and varied and may involve detailed advice. Any issues of capacity may also add significant time and expense.

Is a flat fee for a ‘simple’ will or a ‘standard’ power appropriate, or should an hourly rate apply?

Are there any scale costs that can be used as a guide? What costs disclosures must be made to the client?

What arrangements should be made for the storage of original wills?

How should copies of documents be managed?

These practical questions are dealt with in new sections of commentary on Costs and Storage in our NSW, Vic, Qld, SA, ACT, Tas and WA wills and powers publications.

All of these publications include the By Lawyers wills and powers Costs Agreements and example invoices, which meet costs disclosure requirements and include disbursements, billing and payment arrangements, client rights notice and solicitor’s lien provisions, among others.

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