Hookway v Hookway

[2016] TASSC 28

Supreme Court of Tasmania

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Interrogate

Catchwords

1. Succession
2. › Making of a will
3. › Testamentary capacity
4. › Soundness of mind, memory and understanding
5. › Will executed day before death
6. › Effect of morphine and sedative medication on capacity
7. › Expert medical evidence
8. › Onus of proof
1. Succession
2. › Making of a will
3. › Testamentary capacity
4. › Rule in Parker v Felgate
5. › Will not prepared in accordance with testator's prior instructions
6. › Solicitor's departure from instructions
7. › Whether testator understood will reflected earlier instructions
1. Succession
2. › Making of a will
3. › Knowledge and approval of contents
4. › Whether distinct concept from testamentary capacity
5. › Whether testator knew and approved contents of will prepared on earlier instructions
1. Succession
2. › Revocation of grant of probate
3. › Discretion to revoke
4. › Delay and acquiescence
5. › Whether delay and acquiescence preclude revocation
6. › Due and proper administration of estate
7. › Testamentary intention of deceased
8. › Interests of beneficiaries

Quick Take

A will executed by a terminally ill testator receiving morphine and Midazolam via syringe driver on the last day of life may be set aside for lack of testamentary capacity where uncontradicted expert evidence establishes it was unlikely the testator understood what he was signing. The rule in Parker v Felgate does not apply where the solicitor departed from the testator's instructions in a substantial respect and did not explain the divergence to the testator. Delay of over nine years in seeking revocation of a grant of probate does not preclude relief where the applicant reasonably believed the will reflected the testator's intentions and was advised by a solicitor that it was too late to challenge the will.