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The Facts
Niece named sole beneficiary under aunt's will
In 1996 an elderly aunt made a will, in which she left $100,000
to each of her sisters, and the rest of her estate to her
niece.
The sisters pre-deceased the aunt, making the niece the sole
beneficiary of the aunt's estate, should she die.
The aunt also had one other niece and two nephews.
Aunt diagnosed with dementia
In December 2004, the aunt was admitted to hospital with a bowel
obstruction.
At the time of her hospitalisation, the aunt had not seen her
nieces and nephews in many years. Nor had she ever had a close
relationship with them.
However, the nieces and nephews re-emerged during her
hospitalisation.
While in hospital, the aunt was under the care of a geriatrician
who diagnosed her with moderately severe dementia.
Guardianship Tribunal appoints guardian and financial manager
for aunt
The aunt's niece applied to the Guardianship Tribunal,
seeking orders for the appointment of guardians and a financial
manager for her aunt.
The Tribunal granted the application, appointing the niece as
guardian, along with another niece and nephew.
The niece's son-in-law was appointed financial manager.
In February 2004, the aunt was discharged to a nursing home
against her wishes, and lost access to and control of her
money.
Aunt revokes previous will and makes new will in favour of
neighbours
The aunt was angry about the Guardianship Tribunal's
decision.
She was also furious with her niece, as she blamed her for
losing access to her money and for moving her into a nursing
home.
She also suspected her niece's true motive was to protect
her inheritance under the 1996 will, now worth over $12.5
million.
In March 2005, the aunt made a handwritten will revoking all
previous wills and gave instructions to a solicitor, resulting in
an informal testamentary document.
In April 2005, she made a will that was duly witnessed and
revoked all prior wills.
In the new will, she named Mr and Mrs G as her beneficiaries.
They were a married couple who lived next door to the aunt.
Mr G subsequently predeceased the aunt, leaving Mrs G as the
sole beneficiary of the aunt's will.
Aunt dies and argument ensues over which will should be granted
probate
On 17 September 2009, at the age of 95, the aunt died.
Mrs G applied to the Supreme Court of NSW for a grant of probate
in relation to the April 2005 will.
The niece defended this application, seeking a grant of probate
in relation to the 1996 will. She argued that her aunt did not have
testamentary capacity to revoke her 1996 will. Nor did she have
testamentary capacity to make the April 2005 will in favour of Mrs
G.
The principal issue for the court to decide was whether the aunt
had testamentary capacity.
case a - The case for the niece
case b - The case for Mrs G
In order for my aunt to validly revoke her 1996 will and make
the 2005 will, it is a legal requirement that she had the mental,
or testamentary, capacity to do so.
My aunt was unwell with dementia at the time she took these
actions.
For some years before her admission to hospital in 2004, my
aunt had not attended to her taxation obligations. She owed
personal tax of $174,000 and company tax of $128,000.
On my aunt's admission to hospital, the ambulance officer
noted that she presented with weight loss and hadn't eaten for
12 days.
In hospital, she gave the year as 1994 and could not remember
the name of the Prime Minister or the year she was born.
The geriatrician whose care she was under said that her
conversations were disjointed, irrational and at times irrelevant
to the questions asked.
After much time spent with my aunt, he concluded that she had a
marked impairment of the frontal lobe executive function, the area
that would be specifically required for testamentary capacity. He
said she was suffering from advanced dementia, needed 24-hour care,
and that the best solution would be a good nursing home.
When my aunt left hospital, Mr and Mrs G took unfair advantage
of her diminished mental state, even procuring the services of the
solicitor who drafted the 2005 will in their favour.
My aunt's concerning behaviour is what prompted me to seek
the appointment of a guardian. Instead of seeing me as acting in
her best interests though, my aunt believed that I was attempting
to improperly obtain her assets for myself. The geriatrician said
he considered that my aunt had a delusional paranoid belief that I
was involved in a conspiracy to steal her title deeds, her mail and
her money.
The Guardianship Tribunal also noted my aunt's poor mental
state, noting that her presentation there was consistent with
medical evidence that she could be paranoid and suspicious.
Given the above, my aunt clearly did not have the requisite
testamentary capacity to revoke her will and make a new one.
Accordingly, the court should issue a grant of probate
authorising the executor of the 1996 will to deal with my
aunt's estate in accordance with her wishes in that will.
My husband and I cared for our neighbour, the aunt, when her
family showed no interest in her. By 2004, they hadn't seen her
in over 12 years. We would regularly check on her and help her with
her shopping. In fact, I was the one who called the ambulance when
she was unwell in 2004.
Notwithstanding what the geriatrician said, the aunt did not
have severe dementia. According to a neurologist who also examined
her, her symptoms could be explained by a vitamin B12 deficiency
and temporary sensory impairments suffered in hospital. The aunt
also had very poor vision and was somewhat deaf, which according to
the neurologist, would cause disorientation when out of her
familiar environment.
The neurologist also performed a variety of diagnostic tests on
the aunt. These included a Frontal Assessment Battery, which
consists of tasks found to be sensitive to impaired frontal lobe
functioning. The aunt scored 17/18, which is normal.
Nor was the aunt delusional in thinking that her niece had
ulterior motives. While the aunt was in hospital, her niece
ransacked her house, removing important documents, including title
deeds and a copy of the aunt's 1996 will. The niece only
applied to the Guardianship Tribunal after this theft, because she
discovered that she was the sole beneficiary of the 1996 will and
stood to inherit $12.5 million dollars.
The niece's son-in-law, who was appointed as financial
manager by the Guardianship Tribunal, was actually abusing his
position and taking the aunt's money. He left her without
adequate funds, preventing her from writing cheques as she was
accustomed to. He also charged her professional fees for his
services, which is something he had advised the Tribunal he would
not do.
The son-in-law also improperly used the aunt's money,
transferring her assets into his own name, including a bank
account. He then gave his wife and daughter a debit card to this
account, which they used for their own purposes, including buying
Max Brenner Chocolates and alcohol from Liquorland.
The aunt's decision to revoke her 1996 will was clearly not
driven by dementia, but rather by her justifiable anger towards her
niece. It was also entirely reasonable that she would choose to
leave her property to me in her 2005 will, given that she had no
real connection with her nieces and nephews.
The court should conclude that the aunt had testamentary
capacity to revoke her 1996 will and to make the 2005 will. It
should issue a grant of probate authorising the executor of the
2005 will to deal with the aunt's estate in accordance with her
wishes in that will.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
