› Testamentary capacity — soundness of mind, memory and understanding
Succession
› Making of a will
› Testamentary instruments — knowledge and approval of contents — suspicious circumstances
Succession
› Making of a will
› Testamentary capacity — presumption of capacity — rationality of will on its face
Appeal and new trial
› Appeal — general principles
› Interference with judge's findings of fact
Quick Take
1A will may be found not rational on its face where it effects a radical departure from a deceased's long-held testamentary intentions, without proper explanation, in circumstances where the principal beneficiary of the change was substantially involved in the instigation, preparation and execution of the will.
2Where a solicitor fails to undertake any proper assessment of testamentary capacity, fails to read through or explain the will to an elderly testator with cognitive decline and vision impairment, and permits the principal beneficiary to attend the instruction-taking meeting, the propounder of the will faces acute difficulty discharging the burden of proving testamentary capacity and knowledge and approval.
3Expert medical evidence of dementia or mild cognitive impairment, combined with contemporaneous community nursing observations of confusion, memory loss and declining self-care, may rebut the presumption of testamentary capacity even where the testator appeared lucid on some occasions, given the fluctuating nature of such conditions.
Case Details
Citation[2026] SASCA 7
CourtSASCA
JurisdictionSouth Australia
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