Would your client's will withstand a testamentary capacity challenge?

Solicitors taking instructions for a will must take reasonable steps to satisfy themselves that the will-maker has capacity. Dealing with testamentary capacity can be a complex area, particularly if the client is elderly, has a diagnosis of dementia, is in hospital or being cared for and a new will is proposed with substantive changes. The case In the matter of the Will and Estate of Kalliopi Siapantas [2023] VSC 125 demonstrates that video-recording a will interview can be an effective tool to help withstand will challenges on the basis that the will-maker did not have testamentary capacity.

Kalliopi Siapantas (the will-maker) died in October 2021 at the age of 92. She executed various wills during her lifetime including in 2008 naming her husband, son, and daughter as beneficiaries and in 2015 after her husband’s death, naming her two children equally.

In May 2019 the will-maker instructed her solicitor to prepare a new will that also named her daughter-in-law and two grandchildren as beneficiaries such that her estate would be split five ways. The proposed changes resulted in the daughter receiving a smaller share than under the 2015 will.

The solicitor prepared the will based on written instructions from the will-maker and a face-to-face interview. The solicitor considered the will-maker had testamentary capacity, but both were concerned the will was susceptible to challenge given the daughter’s reduced inheritance and acrimonious relationship with her brother.

In October 2019 the solicitor assisted the will-maker to prepare a further will in identical form to try and make it safer from challenge. The solicitor made enquiries about the will-maker’s medical history and obtained a medical opinion from a neuropsychiatrist who had previously assessed the will-maker. The solicitor also arranged for a neuropsychologist to assess the will-maker on the morning of their interview. Both medical practitioners opined the will-maker had testamentary capacity.

The will interview was filmed by a professional videographer. The meeting was conducted in Greek and the recording was translated with English sub-titles. The solicitor went through the will and asked open ended questions directed at ascertaining whether the will-maker had testamentary capacity using the common law test in Banks v Goodfellow (1870) LR 5 QB 549; including that she understood the effect of making a will, was aware in general terms of the nature, extent and value of the estate and appreciated the competing claims of each family member. They also engaged in general discussion and the will was signed.

Probate was sought for the October 2019 will. The will-maker’s daughter initially filed grounds of objection contending that both 2019 wills were made when the will-maker lacked capacity or was unduly influenced by her son and daughter-in-law in suspicious circumstances. The daughter had also obtained a medical opinion in early 2019 that the will-maker suffered from dementia and did not have capacity to make a will. However, the video recording of the will interview was produced and also played at the hearing. The daughter did not challenge the evidence or oppose probate being granted (a settlement also having been reached between the beneficiaries).

At the probate hearing, Gorton J commented that he was impressed with the video recording of the will meeting and care taken. His ruling observed:

the recording revealed an elderly lady who was able to identify her assets and give clear and plausible reasons for which she wished to divide her assets among the different members of her family in the way provided for in the will. She spoke clearly and with confidence. The terms of the will were explained to her, and the deceased appeared to understand the explanation and conveyed that the will reflected her wishes. She appeared to have good concentration and cognitive function; certainly, there was nothing that indicated to the contrary. For example, there was an occasion where she corrected [the solicitor] on the ages of her two grandchildren.

When capacity may be an issue, or at least susceptible to challenge, solicitors should always have the testamentary capacity test at the forefront of their mind and make enquiries to inform their assessment including:

• obtain a contemporaneous medical opinion which has regard to the will-maker’s recent medical history. If the client is in hospital or care, enquire if there is a reason to be concerned about capacity (Re Maddock; Bailey v Maddock 2023 VSC 346). However, exercise caution in relying on medical opinions — testamentary capacity is a legal (and not medical) test.
• interview the will-maker in person, alone and using open ended questions addressing the Banks v Goodfellow test when taking instructions to prepare the will and again when signing it. In the recent judgment of Haberfield & Ors v Larsson [2023] VSC 161, Cavanough J (at pages 3 to 17) provides a good summary of the test and its ‘modern restatement’ by the courts.

In considering testamentary capacity, a court will likely request evidence of the steps taken by the solicitor to confirm capacity. It is important that solicitors take comprehensive file notes documenting the questions asked and the will-maker’s answers and also prepare a file note that records their opinion as to testamentary capacity and the reasons why they have reached this view. A video recording of will interviews can in appropriate cases provide compelling evidence of capacity and improve prospects of the client’s testamentary wishes being fulfilled.