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The key-story of the case is a dispute between the deceased’s children and the solicitor who made the last will in favour of the children and the deceased’s wife. The first will contained as beneficiaries the three children with equal shares in the estate.
The claim brought in front of the Supreme Court was the circumstance in which the deceased hat made his second will. The circumstances were, as evidence presented to the court, that the deceased had no full testamentary capacity. This issue leads the court to the decision to give provision to the first will and denied grant of probate for the second will.
Based on this case one of the main question arising is, how can be a new will secured when testamentary capacity is lacking. Secondly how can the process of making a will be secured against the claim of missing testamentary capacity.
To answer this question as said mainly based on the case of Ryan v Dalton, we will have to look what which facts lead the court to his decision.
The following has not to be understood in any kind as legal advice to any personal situation. The intention of the following is based on examples and drawn on the case of Ryan v Dalton. If the reader is seeking for personal advice, please consul your solicitor.
In Ryan v Dalton the court ruled that no grant of probate is given to the second will, because of the lack of testamentary capacity during the time when the will was made. This fact was proven with evidence including a testimony of an expert witness. Also, the medical documents from the care facility of the deceased has shown several factors of the lack in capacity in general.
In civil cases, like the discussed one, the standard of proof which has to be meet is the balance of probabilities. This means the succeeding party has to proof its claim and case with over 50 per cent. As the court stated in his consideration that this was not a straightforward case and that the expert witness mentioned that the deceased was likely to fully understood the effect which the changes in his second will are having. The question standing is about the circumstances which may lead the deceased to the decision to change his will. Maybe this decision was affected by a mental disorder. In this question the court was not satisfied on the mentioned balance of probabilities, that the second will was made a free and capable testator.
What could have been done to avoid this situation?
The New South Wales Supreme Court gives in his consideration a path what could have been done other to avoid the outcome of a dismissed grant of probate of the second will.
The first change could have been, the question before starting to take in any instructions for a new will if any health issues are known. This clarification could have been for example by questioning based on this case besides the close family members also the stuff of the care facility.
Secondly would be as the court mentioned after the will was drawn up, instead of only reading the new will paragraph by paragraph. Another form may have been if the solicitor would have asked questions to confirm the new made instructions in the will.
The question of the right and unthoughtful way of action stays open, as metal capacity is, especially for non-medical persons, hardly to verify in stages when it did not become obvious.
In my personal point of view the New South Wales Supreme Court does acknowledge the demographical reality as populations are getting older based on a variety of reasons in his postcriptum. The appointed recommendations will give, if filled with the necessary life, more security on testators, their families as well as to the legal profession.
The first change could have been, the question before starting to take in any instructions for a new will if any health issues are known. This clarification could have been for example by questioning based on this case besides the close family members also the stuff of the care facility.
Secondly would be as the court mentioned after the will was drawn up, instead of only reading the new will paragraph by paragraph. Another form may have been if the solicitor would have asked questions to confirm the new made instructions in the will.
The question of the right and unthoughtful way of action stays open, as metal capacity is, especially for non-medical persons, hardly to verify in stages when it did not become obvious.
In my personal point of view the New South Wales Supreme Court does acknowledge the demographical reality as populations are getting older based on a variety of reasons in his postcriptum. The appointed recommendations will give, if filled with the necessary life, more security on testators, their families as well as to the legal profession.
