Attwell v Morgan [2019] WASC 182

11 November 2019

Summary & Significance

The principle issue in this case was whether or not the deceased had testamentary capacity when signing his last Will and its associated codicil. There was no associated issue (such, as for example, whether any undue influence had been exercised).

This case is significant because the Judge found that evidence given by various expert witnesses retained by the parties as to the deceased’s testamentary capacity was of little value and that the experts themselves had:

  • Not been properly instructed;
  • Proceeded on the basis of the wrong test or the incorrect application of the test for testamentary capacity; and
  • Drawn conclusions which could not be relied upon (given they were based on the incorrect test or an incorrect application of the test).

Rejection of Expert Evidence

The Court’s findings in relation to the quality of the expert evidence and the instructions underpinning them are particularly significant because there were three experts who submitted reports including a joint report arising from an experts’ conference. In other words, the parties and the Court had gone to significant lengths to obtain expert evidence and, yet, the evidence was of little to no weight.

There were several reasons why the Court made the findings it did in relation to the experts’ evidence. In particular, the Court observed that:

  • One or more of the experts had expressed the view that they ‘could not exclude the possibility that the deceased was influenced or convinced to make decisions to amend his Will based on external influence or pressure’ – in circumstances where there was no evidence of any ‘external influence or pressure’ and that was not the pleaded case;
  • One of the experts had doubted the integrity of a solicitor’s interview of the deceased on the basis of an irrelevant consideration that possible influences had been brought to bear on a ‘very vulnerable man’ (again, when there was no evidence of any such influences and undue influence was not the pleaded case);
  • The experts laboured under the misconception that it was a requirement of the valid exercise of testamentary capacity that the testator be able to state the value of his or her assets;
  • The experts laboured under the misconception that there ought to be explicit evidence concerning specific monetary values cognitively worked through and justified by the deceased with respect to the value of his assets, and the relative apportionment of monetary values to his beneficiaries; and
  • In the circumstances, the experts had ‘set the bar for assessing testamentary capacity way too high’.

Testamentary Capacity

Given the findings in Attwell, it is worth revisiting the correct test for testamentary capacity and also making some general observations about expert evidence.

Firstly, a summary of the correct test for testamentary capacity is drawn from the seminal case of Banks v Goodfellow (1870) LR 5 QB 549.  In summary, it is that to have testamentary capacity a will-maker must be of sound mind, memory and understanding to make a will. They must:

  • Understand the nature and effect of a will;
  • Understand the nature and extent of their assets (not necessarily to the dollar, but to a sufficient degree to be able to make informed decisions about their disposal);
  • Understand and appreciate that certain people may have claims to part of their Estate and the nature of those claims; and
  • Not be affected by insane delusions that poison the disposal of their assets when their will is made.

Aside from the classic test, case law in the area of testamentary capacity has evolved over time to provide for some additional important principles. They include that:

  • When capacity is potentially in doubt (for example, with an obviously infirm or weakened testator), solicitors should take ‘particular care’ to gain reasonable assurance as to the testator’s capacity (see Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87);
  • A will made in advanced age will always be scrutinised carefully by a Court (see Nicholson v Knaggs [2009] VSC 64);
  • A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation (see Bool v Bool [1941] St R Qd 26);
  • Proof that a will was properly signed and witnessed creates a rebuttable presumption of testamentary capacity;
  • The presumption of capacity is rebuttable where there is evidence which, on the whole, casts doubt upon the capacity or competence of the will-maker; and
  • Where sufficient doubt is cast upon the capacity of the will-maker, the Court will not grant probate of a particular will unless the person propounding that will can positively satisfy the Court that the will-maker had the requisite capacity at the time of giving instructions and signing the Will.

Implications for Expert Evidence

In terms of expert evidence, the lessons learned from Attwell are that:

  • Expert evidence will only assist the court if the solicitors who brief those experts do so properly;
  • Briefs to experts should carefully explain the test for capacity and avoid delegating legal analysis to doctors who either contemporaneously or retrospectively assess the will-maker’s capacity;
  • Contemporaneous medical evidence is more probative than retrospective medical evidence;
  • The expert witnesses should set out their diagnosis, specifying any degree of cognitive impairment and support their diagnosis with practical examples which can assist lawyers and the Court in the legal analysis of testamentary capacity;
  • The question is whether the will-maker had the capacity of sound judgment, not whether he or she in fact made that judgment, or drew the will based on reasons which might appear to an observer to be appropriate or rational; and
  • If an expert has clearly misstated the test for testamentary capacity or incorrectly applied the test in drawing any conclusions, the expert should be informed that he or she should amend their report in order for it to have probative value to the Court.

This article was written by Simon Crawford, Partner and Christian Teese, Senior Associate.

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