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The Plaintiff, in her capacity as Executor, applied for a grant of Probate of the last Will of the Deceased dated 5 December 2013. The Will bequeathed the Deceased’s entire estate to the Plaintiff. As a beneficiary under the Deceased’s earlier Will of 2004, the Defendant had standing to contest the Plaintiff’s application. The Defendant challenged the validity of this Will. The Will was made one week before the Deceased died, while she was suffering from the final stages of oesophageal cancer and had already been hospitalised for some weeks.

The principle from Timbury v Coffee (1941) 66 CLR 277 is that provided a Will is rational and correctly attested, it is presumed to have been made by a person of competent understanding. However, if circumstances counter balance that presumption, the evidence as a whole must be sufficient to establish that the testator was of sound mind.

“Before a Will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects”.


The requirements for valid execution of a Will are set out in Section 6 of the Succession Act 2006:

  • - Will must be in writing and signed by the testator;
  • - Testator’s signature must be witnessed by two witnesses;
  • - Those two witnesses must attest to and sign the Will in the presence of the testator.


The Defendant contended that the signature on the Will was not the Deceased’s normal signature. The Court considered that while the signature appeared different from that on the Deceased’s previous Wills, it was consistent with what might be expected of a person only a week away from death, weakened by cancer and signing the document in a hospital bed.


The Will was prepared at the hospital on the day of signing by the Deceased’s solicitor, Mr Bradstreet. Mr Bradstreet had acted for the Deceased in many matters since the 1970s. The Court accepted that because of Mr Bradstreet’s longstanding knowledge of the Deceased, he was in an excellent position to assess her capacity at the time of making the Will. Mr Bradstreet said that the Deceased had phoned him some days before and asked him to attend the hospital. Mr Bradstreet gave evidence that he made small talk with the Deceased prior to signing the Will to assess her alertness. He then discussed with her the contents of the Will to ensure she fully understood its operation and effect.

One of the witnesses to the Will, Ms Parseghian, gave affidavit evidence that she did not consider the Deceased was mentally incapacitated in any way. Ms Parseghian was visiting her mother in hospital and was asked by the Deceased’s solicitor, Mr Bradstreet, to witness the execution of the Will. Ms Parseghian said she had seen the Deceased speak to people in the hospital over the preceding week and that she did not appear incapacitated.

The Court considered that relevant capacity could be inferred from the interactions between the Deceased and Mr Bradstreet, the observations of Ms Parseghian, and the conversations about the contents of the Will between Mr Bradstreet and the Deceased. The Court considered it was clear that the Deceased intended to engage in a testamentary act and could comprehend the way in which she intended to dispose of her estate.


The Defendant argued that the Deceased was induced into signing the Will by the Plaintiff and Mr Bradstreet, thinking she was signing some other document. The Court dismissed these allegations, regarding them as complete speculation by the Defendant, “who is seeking in some way to deal with the personally unpalatable conclusion that the Deceased had actually signed a Will which did not include him”.


The Court held that the evidence was sufficient to satisfy the Plaintiff’s onus to prove the Deceased had sufficient testamentary capacity at the time of execution of the Will.

It is important to confirm the mental capacity of the testator prior to executing a Will. In situations where it is likely that the testator’s capacity will be questioned after his/her death, it is advisable to obtain a report from a qualified medical professional supporting the testator’s capacity.

At Rankin Ellison Lawyers we can assist you with these matters.

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