Court to Agree Will of Man Lacking Testamentary Capacity

A judge in Queensland has been given the difficult task of deciding how the estate of a multimillionaire should be divided when he dies, reports the Courier Mail.

The elderly gentleman, who has not been named, has an estate worth an estimated $70 million. In 2013 he was judged by doctors to have lost testamentary capacity and therefore was legally unable to make a Will or manage his own financial affairs.

His litigation guardian applied to court to have a statutory Will agreed on his behalf, and it is now up to the judge to decide how the man would choose to distribute his estate if he had sufficient capacity to do so. Other existing Wills have also to be taken into account, including seven that were written before and after the man lost testamentary capacity.

To help inform his decision the judge heard three days of evidence from people who could reasonably be expected to have an interest in the estate. This included the man’s three children, friends, business partners and charities.

The children will be the main beneficiaries of the estate, but the judge will have to determine the size of bequests to other parties. He also has to consider whether special provision should be made for one grandchild, who is the illegitimate and only child of one of the man’s sons. He apparently has no relationship with his father and therefore is unlikely to inherit anything from him, while the other grandchildren can expect to eventually receive large inheritances from their parents.

The case is highly complex and shows how the existence of testamentary capacity is an essential requirement for making a valid Will. According to the NSW Trustee & Guardian, testamentary capacity can be defined as:

• Knowing the legal effect of a Will
• Being aware of the extent of your assets
• Being aware of the people who would normally be expected to benefit from your estate
• Not being prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your Will.

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