Making A Valid Will

13 JUL 2021

 

The late David Rofe QC, a retired barrister, died in July 2017 at 85 years of age and leaving an Estate estimated at $30 million. 

After being diagnosed with dementia in October 2010, Mr Rofe executed a number of Wills, with the last Will being executed in December 2014. 

Following Mr Rofe’s death, a number of potential beneficiaries challenged the validity of his last Will on the basis that Mr Rofe lacked testamentary capacity and knowledge and approval of the nature of his Estate. The beneficiaries named in Mr Rofe’s last Will and the interest they were to receive substantially differed from earlier Wills made by Mr Rofe prior to his dementia diagnosis.  

Determining a person’s capacity is an essential component of a valid Will.  If a person lacks capacity, then they cannot make a valid Will. Mr Rofe did not engage a lawyer to prepare his 2014 Will, but dictated his wishes to a friend who typed up the Will.  This particular friend was also named as a beneficiary of his Estate.  This case demonstrated the complexities surrounding capacity and the ability to determine a person’s capacity at the time they executed their Will.   

This case also highlights the importance of having a Will prepared by a Solicitor who can assess a person’s legal capacity and prepare appropriate file notes to support their determination regarding legal capacity at the time the Will was executed.  

Earlier this year, the Court concluded that Mr Rofe’s last Will made in 2014 was valid and therefore that Will was upheld.  This case is an example of how capacity issues can create significant problems with the finalisation and distribution of a person’s Estate.   

In New South Wales, the Succession Act 2006 (NSW) provides the requirements for making a valid Will.  To make a valid Will, the testator (the person making the Will) must have the legal capacity to make a Will, the Will must be in writing and signed by the testator in presence of at least two independent witnesses. 

When determining legal capacity, a solicitor must be satisfied that the testator understood the nature of the Will, the extent of their assets, who they ought to make provision for in their Will and who might be eligible to challenge their Will.  Although the testator is able to make their own Will, they should do so with caution.  

If you are considering making a Will, we recommend you contact our Estate Planning team who can assist you with the preparation of your Will and Estate Planning. 

To discuss your Estate Planning queries, please contact our Estate Planning Department on 02 4626 5077 or via email at kwolthers@marsdens.net.au

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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