Austlii (Supreme Court of New South Wales – Court of Appeal) SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had testamentary capacity.
PROCEDURE – Role of judge – Lengthy questioning of expert witness by judge – Whether intervention excessive – Whether intervention gave rise to a denial of natural justice.
EVIDENCE – Expert evidence that testatrix suffering from delirium – No opposing expert evidence – Hospital records suggesting conduct of testatrix inconsistent with symptoms of delirium as described by expert – Whether open to judge to reject uncontradicted expert evidence.
‘The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.’
[2009] NSWCA 197
Austlii
Australia
Citing:
Cited – Banks v Goodfellow QBD 6-Jul-1870
Test for Capacity to Execute Will
The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
Cited by:
Cited – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 18 December 2021; Ref: scu.374720
