Capacity and Death Bed Wills
The case of McNamara v Nagel [2017] NSWSC 91 considered the issue of testator capacity in contested wills made upon the individual’s death bed.
Facts:
- The contested will was made 15 days before the then 87 year old testator’s death
- There was no evidence that the testator suffered from delusions, dementia or any other cognitive deficit before her death. However, she did have momentary periods of fever and delirium during the time in which the will was executed
- The new will included significant changes from the testator’s previous will
- It was argued that there was undue influence on the part of the principal beneficiary, as they were present when then testator gave instructions for the will
Despite there being evidence from the solicitor and another witness and conflicting expert evidence as to the testator’s capacity, the attack on the will failed and the testator was found to have capacity.
If you would like more information or advice in relation to a will dispute, contested wills or testamentary capacity you should consult a member of our Wills and Estate Planning Team.
Contact Mimi Su on (02) 9635 7966 or mimis@matthewsfolbigg.com.au
Contact Terry Doust (02) 9635 7966 or terryd@matthewsfolbigg.com.au
