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Challenging a Will

Essential Role of Testamentary Capacity in Will Challenges

For a will to be valid, a will- maker (testator) must have sufficient mental capacity to make the will. This is referred to as “testamentary capacity”. 

If the will-maker does not know and understand what they are making and what a will does and the effect of same, the will can be challenged. 

In Starr v Miller [2022] NSWCA 46 the Supreme Court of New South Wales considered the validity of a will, where the will-maker had dementia. 

Overview of Starr v Miller Case

In the Starr v Miller [2022] NSWCA 46 case, the Supreme Court of New South Wales examined testamentary capacity in the context of a will-maker. Susan Starr, the deceased’s daughter, aimed to challenge the probate for her mother’s 2012 will, made after an early-stage dementia diagnosis.

Asset Distribution in the 2012 Will

The $8,674,379 estate was distributed with principal rural interests to one daughter, Margo, and the remainder equally among Susan, Emma, and Belinda. Susan contested, seeking probate for a 2006 will, alleging her mother lacked testamentary capacity during the 2012 will’s execution.

Evaluation of Testamentary Capacity

The court assessed the deceased’s capacity during the 2012 will, considering evidence, primarily from solicitor Mr Bradford Stuart. Despite inconsistencies in his cross-examination, the court found support in Mr. Stuart’s contemporaneous records. These records met the necessary threshold for testamentary capacity.

Practical Approach to Capacity Determination

The court endorsed Justice Hallen’s practical approach, emphasising contemporaneous documents and logical inferences over retrospective expert evidence. This approach gave weight to Mr Stuart’s and Dr Guerin’s opinions, dismissing Dr Cetiner’s retrospective expert evidence.

Outcome and Implications

The court dismissed Susan’s appeal, directing her to cover the estate’s costs and her own. Solicitors must underscore the importance of maintaining meticulous record-keeping, particularly when facing potential challenges to testamentary capacity.

Contact Access Law Group

For assistance in creating a valid will, contact Access Law Group for a discounted initial consultation at 02 4220 7100 or email lawyers@alg.com.au.