As the number of people over the age of 80 years in Australia continues to increase, so too does the number of deaths that have “dementia” or other mental and behavioural disorders recorded as the underlying cause of death on a death certificate. As people live longer, they also have a greater opportunity to accumulate wealth. This often leads to estate litigation in the Courts on the grounds that at a time a person made their last Will, they did not have the testamentary capacity to do so.
Whether a person did or did not have testamentary capacity at the time he or she made a Will or Codicil is a matter that only a Court with the requisite jurisdiction can determine.
When deciding whether a person had testamentary capacity, the Court will usually apply the “classic” test, which was set out in Banks v Goodfellow and helpfully restated in Read v Carmody as follows:
- The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;
- The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;
- The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;
- The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons. In this respect, “no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties”.
One of the most recent cases regarding testamentary capacity, Frizzo & Anor v Frizzo & Ors  QCA 308, was heard by the Supreme Court of Queensland Court of Appeal.
Mrs Frizzo, a wealthy 81-year-old widow with five children, who was starting to exhibit some symptoms of mild dementia, had a fall and broke her hip on 20 January 2006. She was subsequently admitted to hospital and at various times in the days after her admission she was incoherent and confused however, she improved significantly on 27 and 28 January 2006. She required surgery to fix her hip that, due to her age, carried a risk that she may not survive the surgery.
Mrs Frizzo had made a Will in 2003 that substantially favoured one of her children, Shane, who stood to inherit the lion’s share of her Estate that was worth approximately $30 million.
Just prior to entering the theatre for surgery on 28 January 2006, Mrs Frizzo told the anaesthetist that she wanted to make a new Will. Mrs Frizzo then spent approximately half an hour dictating her Will to a doctor, who wrote down what she instructed on hospital progress notes. Those notes were then signed by her and witnessed by a different doctor and a nurse. Those notes were left in the hospital records. The dictated Will left her entire estate to her five children equally. The question before the Court was whether Mrs Frizzo, at the time she dictated and signed the 2006 Will, had the testamentary capacity to make her Will.
It was argued by Shane that she did not have testamentary capacity to make the 2006 Will because she was suffering from a form of delirium and further, that she did not fully appreciate the extent of her significant assets.
The trial judge found that at the time she made her 2006 Will, Mrs Frizzo did have testamentary capacity. The trial judge accepted the medical evidence that she was not suffering from delirium on 28 January 2006 and further that she:
- understood in general terms the extent of her estate; and
- understood that she had previously made a Will that favoured Shane over her other children.
Shane appealed the decision of the trial judge however the Court of Appeal unanimously dismissed the appeal.
In his judgement, Muir JA stated that “it [was] obvious enough from the content of the 2006 Will dictated by Mrs Frizzo that she understood that she was giving instructions for a change to her previous will; in so doing she was dealing with her property; she wished the beneficiaries to be her children; she was troubled by the lack of equality in the treatment of her children in her existing testamentary disposition and she wanted to proceed on the basis that the children should be treated equally. She articulated a reason for her approach in this regard: she wanted to avoid conflict between her children. She said, and there is no reason for disbelieving her, that she had been thinking about changing her will for several days. It is a reasonable inference to draw that Mrs Frizzo was motivated to act as she did because of an understanding of the possibility, brought home to her by Dr Scolaro‘s pre-operative discussions, that she may not survive the operation. There was nothing in what Mrs Frizzo said when, or immediately before, dictating the 2006 Will which was irrational, delusional, illogical or suggestive of an inability on her part to comprehend the nature of the exercise she had initiated or the import of the words she was using.”
Muir JA also observed that because Mrs Frizzo had expressed a wish that her whole estate be divided equally among her children, there was “no need for Mrs Frizzo to descend into any detail concerning the nature or extent of the assets being disposed of by her Will”.
The appeal being dismissed, Mrs Frizzo’s substantial estate will now be distributed equally amongst her five children.
This case clearly highlights that questions of testamentary capacity need to be dealt with on a case by case basis. It may very well have been the case that if the 2006 Will had purported to give specific assets to specific children, that testamentary capacity may not have been able to be established if Mrs Frizzo had not been able to demonstrate her understanding of the extent of her Estate.
The Will was made in an unorthodox manner but ultimately admitted to Probate. Obviously it is more appropriate to engage a competent lawyer to assist with the preparation of the Will who would obtain a medical report to support testamentary capacity if that is in doubt.
It was also fortunate that in this case, there was medical evidence available as to the state of Mrs Frizzo’s mind at the date she made a 2006 Will. If this evidence had not been available, the outcome could very well have been different.
It is extremely important for practitioners, and the general public, to be aware that if elderly persons are considering making a new Will, a medical report supporting their testamentary capacity, as well as the notes of the practitioner who prepared the Will should be readily available.
In the writer’s view, any elderly person who makes a “Will Kit” Will at home without medical assessment or legal advice runs the risk that their estate will be substantially diminished by the legal costs that will be necessarily spent to establish testamentary capacity in the Courts.
 Australian Bureau of Statistics, 2012, Causes of Death, Australia, 2010, cat. No. 3303.0, viewed 21 March 2012, www.abs.gov.au/ausstats/abs@nsf/Products/76803190C8A39790CA2579C6000F6FDD?opendocument#
 In the Will of Edward Victor Macfarlane Deceased  QSC 20 at  per McMeekin J.
 (1870) LR 5 QB 549 at 565.
  NSWCA 182 per Powell JA.
 Banks v Goodfellow (1870) LR 5 QB 549 at 565 as cited by Applegarth J in Frizzo & Anor v Frizzo & Ors  QSC 107 at .
 Frizzo & Anor v Frizzo & Ors  QCA 308 at .
 Ibid at .