Caveats and solemn form grants

WENDY, aged 88, makes a will leaving her whole estate to her niece, Alice.

At the age of 95, Wendy, with the assistance of her other niece Jane, puts her house on the market, with a view to moving into a nursing home.

Wendy retains a new solicitor for the purposes of the sale at the recommendation of her real estate agent.

Wendy’s house is sold for $2 million and she moves into a nursing home.

After a short stay in hospital, Wendy makes a new will, with her new lawyer, leaving her whole estate to Jane.

A few years later, Wendy passes away and when Alice discovers that a new will has been made, leaving her out, she files a caveat in the Probate Registry and commences action in the Supreme Court, claiming that Wendy lacked the capacity to make a new will.

Alice subpoenas the solicitor’s file notes, which were unable to be located.

However, evidence is produced that Jane provided the solicitor with a draft will and hand-written notes regarding Wendy’s alleged wishes.

The solicitor is cross-examined at trial and the judge accepts that there was no reason to believe that the documents had been knowingly destroyed.

The solicitor also gives affidavit evidence that Wendy executed her new will in the presence of only the solicitor and his secretary and she was able to accurately and completely recite her details and describe the nature of her assets.

After a five-day hearing, during which other ‘lay’ witnesses gave evidence and expert medical evidence was adduced regarding capacity, the Court ultimately found that Wendy’s last Will was valid and that Jane was entitled to the whole of her estate under a grant of probate in ‘solemn form’.

The total legal costs exceeded $400,000.

If YOU would like a particular issue addressed, please email me at manny@tblaw.net.au or call me on (02) 66 487 487.