A lack of testamentary capacity: a court made will


PICTURE (Vol 29 no 4)

A lack of testamentary capacity: a court made will

“Nathan” is not his real name.  That is because he is 13 years old and his identity can’t be revealed.  Nathan was born with extreme physical disabilities.  These were caused by a lack of oxygen to his brain during his birth. As a result Nathan sued the hospital where he was born and received compensation of many millions of dollars. He presently has an estate of $3.2m.

Nathan lives with a constant risk of death.  He has had to be revived frequently.  On one occasion he was given little chance to live.  That was the position presented to the Supreme Court this year. The court was asked to make a will for Nathan.  It did so on the basis that 5% of his assets were left to his father – who seemingly had little involvement in Nathan’s life, 47.5% to his mother and 47.5% to be divided equally between Nathan’s six older siblings.

Whilst Nathan’s circumstances are particularly tragic, a court made will is a common occurrence for a person who does not have testamentary capacity.

Domostic assistance gives daughter-in-law an interest in real estate

Chris had three sons.  The wife of one of his sons, Maria, provided domestic support and personal care (like cooking, cleaning, shopping and washing) to Chris.  She did so for 23 years and she did so without payment.  There was a falling out between Chris and his son, who was Maria’s husband.  Maria commenced Supreme Court proceedings claiming an interest in Chris’s home by reason of the assistance given.  There was no doubting the domestic assistance provided by Maria, but she received board, lodging and accommodation in return.  Did this mean that the domestic services were provided for fee and reward?  If so, she couldn’t succeed in her claim.

The Supreme Court and, on appeal, the Court of Appeal said no.  They gave Maria a thirty per cent (30%) interest in her father-in-law’s home.  The Court pointed out that these sorts of property interest could arise in other relationships, other than married or de facto spouse situations.  For instance, the Court of Appeal said that a person who lived with a relative who was not self-sufficient, may have such a claim.  The Court pointed out that if the person provided domestic support and personal care, primarily because of family ties but received free board and lodging, and may even have an expectation of inheritance, the person could nevertheless acquire an interest in the relative’s home during the relative’s lifetime.

A thumbnail dipped in tar (or thereabouts)

Estrella Ellis lived in Darwin for at least 30 years.  She contracted a motor neurone disease and returned to the Philippines.   She made her last will there.  She was unable to sign so she marked each page of the will with her fingerprint or thumbprint.   Estrella had assets in Australia and so, after her death, an application was made for probate of the will.

There were various issues for the court including the effect of a Filipino made will in Australia.  Ultimately, the court had to determine if the will was validly made. There were three independent witnesses, but was the will “executed” by Estrella?   The court referred to decisions from the nineteenth century to conclude that the thumbprint or fingerprint was sufficient where infirmity or physical incapacity explained the testator’s inability to sign her name in the usual way.

An absence of elementary paperwork

In August 2007 David Bonnici entered into a de-facto relationship with Narelle, Reynolds.  It came to an end sometime after Bonnici made his last will.  By that will he gave various personal items to each of his three children, his furniture and superannuation to Narelle and the rest of his estate to his three children and Narelle equally. After the breakdown of the relationship, Bonnici made arrangements for Reynolds to use real estate belonging to a self-managed superannuation fund.  After his death, Bonnici’s eldest daughter argued that those arrangements had the effect of supplanting the gifts to Reynolds in Bonnici’s will.


The argument failed, largely because that intention wasn’t established. It wasn’t helped by the fact that, although intelligent, Bonnici was not naturally literate and had an aversion to lawyers.  Accordingly, a document which was asserted as recording the intention was not prepared with any care or legal skill.  It was never signed.  No court orders were made. All of these steps would have been elementary if Bonnici had consulted a solicitor.





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