Case Study: Assessing** Testamentary Capacity

Earlier posts have examined the 12 general rules that should be used when assessing the testamentary capacity of a will maker, as usual, please let me know if you would like access to this content.

The decision of Ruskey-Fleming v Cook [2013] QSC 142 provides an interesting further example of the issues that should be considered and as usual if you would like a copy of the case please contact me.

The case involved an application to court by Ms Ruskey-Fleming (the will maker's daughter) to confirm the validity of the deceased’s 2007 will. The deceased’s son claimed that his father did not have testamentary capacity to execute the 2007 will and that an earlier document, made in 2000, should be treated as the last will.

Importantly, the 2007 will made greater provision for the daughter compared to the 2000 will.

The court reaffirmed the test outlined in Banks v Goodfellow (1870) LR 5 QB 549 as the starting point for assessing testamentary capacity. It was also confirmed that this test needs to be adapted to reflect modern life, particularly in relation to how financial affairs are now managed.

It was held that a will maker does not need to know the details and value of every single asset they own in order to prove that they have testamentary capacity, particularly where share portfolios are involved. What is important is that the will maker is aware generally of their assets and value.

The court found that the testator did not have testamentary capacity in relation to the 2007 will as he:

1. suffered from confusion and disorientation over a lengthy period of time which was evident from medical records and MMSE test results;
2. could not correctly answer the solicitor’s questions in relation to the number and identity of his children and grandchildren;
3. was not aware if he had previously executed an enduring power of attorney;
4. was not able to provide the solicitor with details about his assets and their value; and
5. could not provide a reason for why he was changing his will – which would favour the daughter over the son.

** for the trainspotters, the title here is riffed from the No Doubt song ‘Artificial Sweetener’.