In NSW a testator lacks capacity if at the time of making the will the testator is (i) not of age, (ii) is not of sound memory or understanding. The validity of a will may also be affected by (iii) fraud, undue influence or (iv) lack of testamentary intention.

Age

6 Will of minor
A will made by a minor is not valid, unless the minor is or has been married or section 6A or 6B applies.
6A Will of minor pursuant to leave of the Court
(1) The Court may grant a minor leave to make a will the terms of which have been disclosed to the Court.
(2) Leave may be granted subject to such conditions (if any) as the Court thinks fit.
(3) A will made by a minor pursuant to leave granted under this section is valid.
6B Will of minor in contemplation of a marriage
A will made by a minor who may marry and which is made in contemplation of a marriage is, on the solemnisation of the marriage contemplated, valid.

As at 1 November 1989 the following requirements were in force:

• Under s.6 of the Wills, Probate and Administration Act 1898 (NSW) you have to be 18, which has not changed, unless you are or have been married.
• The Act also provides in s.6A that the Supreme Court may allow a minor to make a valid Will in terms which have been disclosed to the Court.
• in s.6B a Will made in contemplation of marriage by a minor who may marry is validated when the marriage contemplated takes place to the person so contemplated to be married to.
There are no longer privileged testators or wills.

SUCCESSION ACT 2006 - SECT 5

5 Minimum age for making a will
(cf WPA 6 and 6B)
(1) A will made by a minor is not valid.
(2) Despite subsection (1):
(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place, and
(b) a minor who is married may make, alter or revoke a will, and
(c) a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.
(3) Subsection (1) does not apply to a will made by an order under section 16 (Court may authorise minor to make, alter or revoke a will).

SUCCESSION ACT 2006 - SECT 16

16 Court may authorise minor to make, alter or revoke a will
(cf WPA 6A)
(1) The Court may make an order authorising a minor:
(a) to make or alter a will in the specific terms approved by the Court, or
(b) to revoke a will or part of a will.
(2) An order under this section may be made on the application of a minor or by a person on behalf of the minor.
(3) The Court may impose such conditions on the authorisation as the Court thinks fit.
(4) Before making an order under this section, the Court must be satisfied that:
(a) the minor understands the nature and effect of the proposed will or alteration or revocation of the will or part of the will and the extent of the property disposed of by it, and
(b) the proposed will or alteration or revocation of the will or part of the will accurately reflects the intentions of the minor, and
(c) it is reasonable in all the circumstances that the order should be made.
(5) A will is not validly made, altered or revoked, in whole or in part, as authorised by an order under this section unless:
(a) in the case of the making or alteration of a will (in whole or in part)-the will or alteration is executed in accordance with the requirements of Part 2.1, and
(b) in the case of a revocation of a will (in whole or in part):
(i) if made by a will-the will is executed in accordance with the requirements of Part 2.1, and (ii) if made by other means-is made in accordance with the requirements of the order, and
(c) in addition to the requirements of Part 2.1, one of the witnesses to the making or alteration of the will under this section is the Registrar, and
(d) the conditions of the authorisation (if any) are complied with.
(6) A will that is authorised to be made, altered or revoked in part by an order under this section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of the will.

SUCCESSION ACT 2006 - SECT 17

17 Will made by minor under an order of a foreign court
(1) A will of a deceased person that is a court authorised will for a minor is a valid will.
(2) A will is a "court authorised will for a minor" if:
(a) a court, in a place outside New South Wales, made an order authorising a minor to make the will, and
(b) the will was executed according to the law of the place relating to wills of minors, and
(c) the minor was a resident in the place at the time the will was executed.

The Succession Act 2006 was effective as of 1 March 2008

5(1) – A minor under 18 cannot make a will.

Exceptions:
• 5(2) – Minor may make/alter/revoke a will which is made in contemplation of a particular marriage. Has no effect until the marriage takes place.
• Minor married may make/alter or revoke a will.
• Minor who has been married may only wholly or partially revoke a will.

Section 16 – enables the court to authorize a minor to make, alter or revoke a will. (They never used to need authorization).

Sound Mind, Memory and Understanding

A testator lacks capacity if at the time of making the will; the testator is not of sound mind, memory or understanding.

Bank v Goodfellow (1870)

Held: Cockburn CJ says that generally speaking a person has a moral duty when making a will to leave his property to “relations and very close friends and the community would be generally shocked if the testator does not do so”. However, this is only a moral duty because under English law a testator is not obliged to do this. Unlike some continental systems the law does not arbitrarily provide for relatives but leaves the testator free to leave to whom he likes because the law considers that the testator is in the best position to judge and weigh up the relative clams upon him. Even though the testator may do something morally reprehensible on the whole the system works much better than any system the law could prescribe, but before a testator can make a valid will, the testator must know what the testator is doing and as Cockburn CJ says, the testator must be capable of 4 things:
1. Understanding the nature of his act and its effect;
2. The testator must be capable of comprehending and appreciating the claims to which he should give effect;
3. know what property he has to dispose of; and
4. Not be suffering form any disorder of the mind which would make him dispose of his property in a way which he would not have done if his mind would have been sound.
If the testator is capable of doing those 4 things, then the testator’s will is valid even if the testator does not actually do any of tem and although the testator disposes of property in a way that offends every moral law.

If you are capable of doing all those things, the will is still valid even if you suffer from “insane delusions”, which was what was involved in the above case. In that case it was plain that the testator was pretty mad. He had spent some time in asylums. He had fixed delusions that he was being persecuted by a man, Featherstone Alexander, even though this person was dead, and that he was being molested by visible devils and evil spirits. The medical evidence was that from September 1863 he was insane. He made a will in December 1863 in favour of a niece who had lived with him and looked after him. The only other relatives that he had were children of his half brother who had not had very much to do with him. There was also evidence that he managed his own money affairs and that he was quite careful with his money. The will still held to be valid because the judge said that in the present case the disposition was quite unconnected with the delusion. Even though he had delusions, the delusions did not affect his will.

However, if the delusions had affected the Will then it would have been invalid.  For example, if he had left his property to his niece because he thought that his half brother's children were helping Alexander to persecute him, then you could show that the dispositions in the Will were affected by the delusions and the Will would have been invalid. This may be classified as the case of a mad man making a sane Will. This needs to be contrasted with the following case which is an example of a sane woman making a mad Will.

Bull v Fulton (1942)

Facts: a testatrix, who is 91 years of age, but mentally bright and who made a Will that on its face was perfectly rational and the kind of Will that she might be expected to make. She had left the whole of her estate to her niece with a gift over to her grand nephew if the niece predeceased her. The evidence proved that she was under a delusion that her nephews, who were solicitors, had defrauded her. Up until the time she had got this delusion she as always left large gifts to these nephews.

Held: The evidence showed that the nephews had not defrauded her so it was a real delusion, and so the will was declared invalid. This was a case on the 4th point of Cockburn’s in Bank v Goodfellow (not be suffering from any disorder of the mind which would make him dispose of his property in a way which he would not have done if his mind would have been sound). She made a will which she would not have made if she had been suffering from a delusion.

The above two cases illustrate that delusions must affect a will.

The next case illustrates that the court is entitled to take modern medical knowledge into account when deciding these questions.

Timbury v Coffee (1941)

In this case, the court heard medical evidence on the effects of alcohol on delusions.

In The Estate of Bohrman [1938]

The case showed that you can not take medical knowledge too far. Here there was evidence that the testator was a fairly cold and unfeeling man, did not love his relatives very much. The relatives tried to say that this goes to show that he was insane. The court held that being cool unfeeling to ones relatives did not make you insane at law. However, he did have a delusion that he was being persecuted by a valuer from London City Council and he made a codicil to his will changing hid residual gifts in the will to charities in the US and not in England. It was held that this clause in the codicil was a result for a delusion and so it was struck out and lifts the original residual clause leaving all the money to the English charities.

The principle arising out of Bohrman’s case that a delusion can affect part of a will has been challenged by a decision in the following case of:

Woodhead v Perpetual Trustees Co (1987)

Facts: In this case a gift to the testatrix’s brother and sister was in dispute. If the brother and sister predeceased her there was a gift over to her grandchild and her grandchild’s husband who challenged the will. The brother predeceased the testatrix but the sister survived. The grandchild claimed that the gifts to the brother and sister on a motor bike in Marrickville when in fact they were in England or Ireland. The court accepted the medical evidence medical evidence that the delusions influenced her in relation to her brother and sister’s moral claim but the court did not consider that any other of delusions from which the testatrix suffered would have effected her capacity to effect the moral claims on her potential beneficiaries, that is the court said that at least the provision for her brother and sister were influenced by her delusions but it did not effect the other provisions. The question then became that if the gifts to the brother and sister was affected by insane delusions, was the rest of the will good, could you server the bad from the rest? If part of the Will was severed then the grandchild would take in substitution of the brother or the sister. However, if the whole will was invalid then the testatrix would have died intestate and under the laws of intestacy the estate would go to the surviving sister. The judge decided that if a will maker suffered from an insane delusion which affected the disposition of property then it seems to follow that the testator is not a competent testator and the whole will is bad, with the result that the testatrix’s sister took as next of kin under intestacy (not the result that the grandchild wanted); so the judge declined to follow Bohrman’s case and sever the good part from the bad.

The lecturer is not convinced that the decision in Woodhead is correct. If the judge had said that the delusions were evidence of general insanity and therefore the whole will failed he would accept that but if you say that only part of the Will was bad and the whole Will failed he can not accept that. Bohrman's case is considered to be the right decision and still good law. Both Bohrman's case and Woodhead's case were decisions of a single judge and one still has to consider Banks v Goodfellow which is an old and established principle; Bohrman's is not inconsistent with it.

Succession Act ss18-26

Court may authorise a will to be made, altered or revoked for a person without testamentary capacity; on specific terms as required by the court; even a minor.

Note: legal test – not a medical test. Testamentary power cannot be determined by a DR. Dr can only determine the mental capacity.

Knowledge and Approval

Astridge v Pepper reinforces that there are two important principles of English law:

Perera v Perera which says that when a testator has given instructions to a solicitor to prepare a Will and the testator is fully able to understand and appreciate what he is doing and if the solicitor draws a Will according to those instructions then the will is good even though at the time the testator executes it the testator only understands that he is executing the will that was instructed and is no longer capable of understanding the clauses which give effect to them. (This is a good reason for a solicitor in practice to only take down instructions directly from the testator rather than through an intermediary).

Astridge v Pepper [1970]

Facts: This was a case where the sole beneficiary, a Mrs McCarthy, actually instructed the solicitor. She telephoned the solicitor and said that the testatrix wanted a new Will leaving all the money to her, Mrs McCarthy. The solicitor did not know the testatrix very well, and only saw her on the occasion of when he took the Will he had drafted for her to sign. The solicitor gave her the Will to read and he said that she appeared to read it thoroughly. He said to her "Do you understand the Will?", and she said, “yes, I am leaving all my money to Mrs Mac." He said, "Is that what you want?" and she responded "Yes". After reviewing all of the evidence the judge came to the conclusion that the testatrix, then aged 99 and in hospital, really did of her own volition and without undue influence intend to leave her estate to Mrs McCarthy and had told her to get the solicitor to draw the Will, and the judge found, that though she did not read the Will and was not capable of understanding_ he was satisfied that she understood the conversation when she said that she said that she was leaving "all  my money to Mrs Mac" and by all her money the judge believed that she meant her whole estate. Not all of the Will was validated. That portion leaving the whole of the estate to Mrs McCarthy was found to be valid but the judge ruled the rest of it (dealing with executor's etc) was bad as she did not remit and it was not explained to her.
 
Fraud and Undue Influence

FRAUD

A Will may be partly or wholly invalidated if the execution of it is induced by fraud. Fraud exists where the testator has been misled by wilfully false statements, for example;
1. if you told the testator that her only son is dead and that you intercepted all the letters from the son and burnt them so that she never got them;
2. By wilful suppression of material facts;
3. Failure to tell the testator of the effect of the testamentary action can in some cases be fraudulent, and
4. The most obvious situation is if the testator is compelled to execute the Will by force or if because of fear is prevented from executing a Will.

UNDUE INFLUENCE

To have a Will invalidated because of undue influence you really have to prove fraud, it is very close to fraud. What you have to in fact prove is that the Will that has been made really does not express the last wishes of the testate because the testator's Will has been overborne by force or fear or something very close to it.

Sir J P Wilde in Hall v Hall says persuasion is not unlawful but undue influence is “pressure of whatever character….if so exerted as to overpower the violation without convincing the judgment”.

The rules as to undue influence, enough to invalidate a will, are quite different to the rules as to what amounts to undue influence sufficient to set aside a gift made inter vivos as in equity. In testamentary law, there is no presumption of undue influence with certain relationships as in equity. Once it has been proved that a will has been executed with due solemnity (in accordance with the formal requirements, by a person of competent standing and apparently a free agent) the burden of proving it was executed under influence lies upon the party who asserts it, there is no presumption that it exists.

Hidson v Weatherill [1959]

Facts: where a gift made by a testator to his solicitor was challenged and the court made it clear that no presumption of undue influence could arise simply because of the relationship.

Held: Different rules apply to Wills to gifts inter vivos, mainly because people who are in wills are people who are in fiduciary relationship with you.

Wintle v Nye [1959]

Facts: where you can make gifts to people who are in a fiduciary relationship with you and no presumption of undue influence arises, but, in this case the House of Lords said that whilst it is true to say that it is not the law that under those circumstances can a solicitor or any other person for that matter who has prepared a Will for someone can never take any benefits under it, nonetheless, the fact that he has drawn up the Will does create a suspicion and this must be removed by the person propounding the will. The amount of suspicion varies according to the case, it can be slight and easily dispelled or very grey. In this case the degree of suspicion was very gray, you have a solicitor who over a period of time drew up a will for an old rich lady, and not a very business like lady, the will started off leaving her residue to charity but ended up leaving it all to the solicitor. He kept the will, he never gave her a copy, she had no independent advice and he never suggested that she should have any.
Held: The House of Lords held that all parts of the will leaving gifts for the solicitor were bad.

You should now also pay heed to the Law Society guidelines which deal with situations where a solicitor has drafted a Will in which a testator has provided for dispositions in the solicitor's favour for commission. You should send them to another person for independent advice.

Persuasion

Hall v Hall (1868)

Facts: the court emphasised that "persuasion" in relation to Wills is not unlawful. You are entitled to persuade a testator to ma e a Will in your favour by appealing to the testator's affections, pressing your claim as a relative etc, all that is legitimate provided you do not press so hard that you force the testator to make a Will that the testator really does not want to make.
Held: The court said “the testator can be led but not driven”.

Wingrove v Wingrove (1886)

Facts: Case in which it was said that "to be undue influence in the eve of the law it must be co-ercion". When a person is co-erced to do something that they do not desire to do then that is undue influence. This coercion can be of different degrees, depending upon the circumstances you may need very little to produce the desired effect if the person is very old and feeble or seriously ill so that the testator will do anything for the sake of peace and quite. On the other hand a lot more is needed if the person is fit and mentally capable.

Burden of Proof

The onus of proving a Will lies on the person propounding it, which is usually the executor, but usually once you have proved the Will as duly executed by a person of competent understanding, then the onus of proving otherwise will lie on the person asserting it. So the onus of proving undue influence lies on the person asserting undue influence. However do not forget the principle mentioned before that the onus on the person propounding the Will is harder to discharge if the suspicion of the Court is aroused in any way such as when the person who draws the Will also receives large benefits under the Will, especially if the beneficiary is a stranger to the testator.

Lack of Testamentary Intention

What if the testator did intend to make a will at all?

Imparting of knowledge only

In the Estate of Knibbs [1962]

Facts: in this case the testator was just imparting a bit of information to the audience. It concerned a privilege testator, who could make an oral Will. He was unmarried but had a sister whom he was fond of and had named her his next of kin in his employer’s records although in fact she was not. In a conversation he was having he said, “If anything ever happens to me then my sister will get anything I have got”. His sister sought to get probate of these words as he had not left any other will.

Held: It was held that there was no testamentary intention. He did not intend the conversation to act as a disposition of goods after death, he was only telling his audience something that he though he had already done, imparting information.

Present “inter vivos” gift

King’s Proctor v Daines (1830)

Facts: In this case it shows that it may have been intended to be a present gift. Here an instrument had been signed by the deceased and witnessed by two witnesses as required by a Will. It said "I do give all my goods to Mary Daines". It was held that there was nothing to show that this was a Will.  It was not called a Will, there was no reference to death or legacy, or executors, words like devise or bequeath as used in Wills. If anything it was a "present" gift (inter vivos), certainly not a will.  It could be queried that if he gave all his goods to Mary Daines as a present gift what would he have lived on, or was it actually meant to be a Will? The principle is important, each judge may construe the facts differently.

A Joke

Nichols v Nichols (1814)

Facts: In this case, it was a joke. Nichols was a solicitor given to ridiculing verbosity in wills. He used to have competitions with a friend to show that he could draw shorter wills than the friend could. After looking at one of the wills his friend wrote, he wrote, “I leave my property between my children, I hope they will be virtuous and independent, that they will worship god and not black coats”. He then allegedly said, “There that is as good a will I will ever make”.

A Mistake

In the Estate of Meyer

Facts: In this case a testatrix and her sister made identical Wills and then they instructed a solicitor to prepare identical codicils. On the death of the testatrix it was discovered that she had executed the codicil that was prepared for her sister, they signed each others codicil. Held: It was held that even though the codicil represented her wishes as they were identical it was invalid as she had never intended to sign this particular document. Could this be decided differently today?

Section 27 of Succession Act – rectification power; solicitor would have to pay all the costs.

27 Court may rectify a will
(cf WPA 29A)
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court:
(a) within 18 months after the date of the death of the testator, or
(b) if the Court has made an order under section 17 of the Family Provision Act 1982 specifying a lesser period in relation to an application concerning the deceased testator under that Act-within that period.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.