In Agostino v Pietrobon [2020] SASC 117(Stanley J) a Will kit document which was purported to be signed by Giuseppina Agostino was propounded as the deceased’s last Will.

It had the effect of disinheriting her son and her six grandchildren and leaving the whole of her estate to her niece and nephew.  In refusing to issue a grant in relation to the document the Court pointed to circumstances which excited suspicion that the deceased did not know and approve of the contents of the alleged last Will at the time of its execution. Among other things:

• The document inexplicably excluded persons naturally having a claim upon the testator, such as the son and grandchildren;
• The alleged last Will departed from the long-held testamentary intentions of the deceased; and
• There was evidence that cast doubt on the deceased’s mental acuity at the time the alleged last Will was ostensibly executed: the deceased was aged 76 years, she had suffered a stroke from which she did not fully recover, she was very forgetful, her physical health was very poor, she withdrew into herself, she did not seem to understand things that were said to her, she was frail, she was sad and cried a lot.

There are some interesting legal principles involved.

• If the Will appears rational on its face and is proved to have been duly executed there is a presumption that the testator was mentally competent.
• That presumption may be displaced in circumstances which raise a doubt as to existence of testamentary capacity.
• Where the Will is prepared directly or indirectly by someone who benefits under it then that person has the onus of proving that the testator knew and understood the contents of the Will and knew the extent of their estate and knew the persons who had a natural claim on their bounty and that they had full capacity to consider all of these factors in making their Will.

We have a great deal of experience in dealing with older people making their Wills and are, at times, called upon to make a decision as to whether the client has the necessary capacity or understanding.  Sometimes we must make the decision that we are not satisfied that the person had the necessary capacity in order to make a Will or Power of Attorney or Enduring Guardianship. In situations such as this, it is always best to obtain expert legal advice.

If you have any queries, please give us a call on 9543 1444.  Our initial consultation is free.