Assessing the validity of a will: the (key factors) to have on your list**

Recent posts have considered some of the key issues in relation to assessing testamentary capacity.

One case often referred to due to its detailed explanation of the key factors the courts take into account when assessing the validity of a will is Bailey v Bailey (1924) 34 CLR 558. As usual if you would like a copy of the case please contact me.

The key factors listed are as follows:

1. The onus of proving that an instrument is the last will of the will maker is with the party propounding it.
2. The court must determine the validity of the will on the balance of the whole of the evidence.
3. The proponent can discharge the onus by establishing a ‘prima facie’ case.
4. A prima facie case is one which, having regard to the circumstances established by the proponent’s testimony, satisfies the Court that the will is the last will of a free and capable will maker.
5. It is the capacity of the will maker’s mind, not body, that is relevant.
6. The quantum of evidence sufficient to establish validity of a will always depends on the circumstances of each case. Relevant factors may include:
1. the simplicity or complexity of the will, its rational or irrational provisions and its exclusion or non-exclusion of beneficiaries;
2. the exclusion of persons naturally having a claim upon the will maker’s estate;
3. extreme age or, sickness of the will maker; and
4. existence of any person having motive and opportunity and exercising undue influence, then taking a substantial benefit under the will.
7. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, then the onus of proof switches to the party challenging the will.
8. To displace a prima facie case of capacity and due signing, mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the will maker so affected their mental faculties as to make them unable to validly dispose of their property.
9. The opinion of witnesses to the signing of the will as to the testamentary capacity of the will maker is usually of little weight on the direct issue, as the court must decide based on the facts, not opinions.
10. Where instructions for a will are given some time before its signing, it is the capacity as at the date of giving the instructions that is most relevant.

** for the trainspotters, the title here is riffed from the Hall & Oates song ‘Your kiss is on my list’.