Comment to SON QUESTIONS HIS MOTHER’S WILL
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Cameron McKenzie The test for testamentary capacity is a common law test, classically stated in the 1870 United Kingdom case of Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ). In order to have the requisite soundness of mind the person must, understand the nature and effect of a will, understand the nature and extent of their property, comprehend and appreciate the claims to which they ought to give effect and be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.
However, Justice Windeyer of the New South Wales Supreme Court has observed that many people have now handed over the management of their share portfolios and real estate to advisers and may not have a proper understanding of the value of the assets that generate their income. This should not be a bar to a finding of capacity on the basis that they do not meet part two of the test, which requires them to understand the nature and extent of their property: Kerr v Badran [2004] NSWSC 735 and Brown v Wade [2010] WASC 367.
However, ‘the freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one’s own property’: Re Estate of Griffith (decd); Easter v Griffith (1995) 217 ALR 284, 294 (Kirby P).
Obviously property was simpler in 1870 compared to modern complex financial structures. Having not read the case, there remains an argument in absence to any challenge to testamentary capacity that a full understanding of the financial structure of the succession plan is not necessarily a barrier to testamentary capacity as cause of action to challenge a will. However, the court in this case felt otherwise. Just my thoughts.
