When is a court prepared to invalidate a Will?
Testamentary Capacity, A Succesful Will Challenge in Victoria
The Victorian Supreme Court’s June 2022 finding that war veteran Norman Maddock lacked mental capacity to give his house and fortune to a hairdresser demonstrates the Court is prepared to invalidate a Will if sufficient evidence is put before it.
Will Challenge Key Case Points: Bailey V Maddock
- Mr Maddock’s estate was worth $3.5 million when he died aged 97 in 2020;
- He via a lawyer changed his Will three times in 15 months before he died. The changes reduced the benefits to his ailing wife and 2 adult children and incrementally increased what was pledged to a hairdresser;
- The last Will named the hairdresser as sole executor and left the couple’s family home and $75,000 cash to her;
- Mr Maddock’s wife and 2 children filed challenges to the Will changes while the hairdresser sought to probate (validate) the Will.
What “red flags” 🚩caused the Court to conclude Mr Maddock lacked testamentary capacity?
- Mr Maddock’s final Will was radically different from previous ones and for the first time provision for his wife was far less and his children were cut out of the Will altogether;
- The hairdresser was in a position of influence over Mr Maddock who appeared heavily involved with him in circumstances where he was vulnerable, impressionable and had become dependent on her;
- Although the final Will had been drawn by a lawyer who determined Mr Maddock had testamentary capacity – the lawyer had failed to adequately address the reasons for coming to that conclusion in not obtaining information concerning Mr Maddock’s significant health issues and his heavy recent reliance on the hairdresser;
- Mr Maddock had a litany of illnesses and health problems including a psychotic disorder, paranoid ideation, cognitive difficulties and low mood in the 2 years before his death.
How to challenge a Will on the ground of testamentary incapacity
- A caveat should be filed with the Registrar of Probates. The caveat prevents the Will from being probate (validated) by the Court;
- On the executor of the Will filing a probate application, the caveator receives a notice from the Registrar of Probates requiring grounds of objection to be filed withing 30 days from receipt of the notice;
- The case is then put into Court with procedural orders made including discovery (production and exchange of relevant documents such as doctor and hospital records or the lawyer’s file and notes if the Will was drawn by a lawyer) and exchange of sworn evidence (affidavits);
- The case then comes before the Court as a contested probate application to determine the question – is the Will valid?
Get Will challenge advice now
Do you have a case for your Will challenge?
Galbally & O'Bryan's Will Challenge lawyers can provide you with advice. Partner Andrew O’Bryan and Senior Associate Carl Wilson are expert Wills lawyers and can offer free phone/first consultation advice. Subject to case circumstances our Will challenge lawyers may be able to act “no win no fee”.
Galbally & O’Bryan is one of Victoria’s leading challenging Wills law firms.
We have offices at Melbourne, Dandenong and Pakenham.
How to Contact Us
Andrew O’Bryan
Galbally & O’Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533 | M 0400 469 704
E aobryan@galballyobryan.com.au
Carl Wilson
Galbally & O’Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Dandenong Office
Shop 9 / 147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E nglavic@galballyobryan.com.au
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PAKENHAM VIC 3810
T (03) 5941 7990
E pakenham@galballyobryan.com.au