Haim v NSW Trustee & Guardian; Estate of Feuerring [2013] NSWSC 1406

The deceased made two Wills, one in 1997 and another in 2003. The New South Wales Supreme Court was asked to consider whether the deceased had testamentary capacity when making his 2003 Will.

In the 1997 Will, the deceased left his estate to his sister. In the 2003 Will, his estate was left to a “friend”, who at the time of the hearing before the Supreme Court, had not been located or even had his existence confirmed.

The deceased’s sister sought an order that Probate of the 1997 Will be granted.

She contended that the deceased suffered from delusions that prevented him from comprehending and appreciating her claim on his testamentary bounty when making his 2003 Will.

The deceased had a long history of mental instability, dating back to the early 1970’s which subsisted until his death. In December 2002 the deceased identified himself as “Pablo Picaso” and in January 2003, he informed a carer that his father died a destitute or a drunk and that his mother died in the family home after committing suicide. These assertions had no rational basis.

The death of his father brought on a period of erratic behaviour in the deceased, during which he became increasingly hostile toward his sister, accusing her of poisoning their father’s food in an attempt to kill him.

The deceased’s palpable distrust of his sister ebbed and waned over the years, at times denying her existence, at others engaging in cordial discussion with her.

Neither party contested that the deceased had suffered from paranoid schizophrenia. However, the issue in question was not whether the deceased suffered from paranoid delusions, but whether paranoid delusions or mental instability affected his testamentary capacity.

Two medical reports were obtained, both of which attested to the stabilisation of the deceased’s mental state after an increased dosage of his prescriptive medications.

The evidence of the Will drafter, an employee of the NSW Public Trustee and a witness to the 2003 Will, was considered by the Court. In particular, questions were asked as to why the deceased’s sister was left out of the 2003 Will. The Will drafter had not taken any detailed notes regarding that issue.

The Court held that the deceased’s complete disinheriting of his only next of kin would have been an “important or noteworthy” event. The absence of any mention in the documentation indicated that the deceased had not turned his mind to his next of kin.

In addition to assessing the deceased’s capacity, an extensive search was conducted to find the “friend” named in the 2003 Will, which included hiring a private detective, searching electoral roll records and making lands title enquiries. The search results found no person by that name who had a connection to the deceased. The “friend’s” existence was determined by the Court to be “inofficious” and an invention of the deceased’s mind as a result of his mental illness.

The disinheriting of a sister in favour of a friend was an important matter, which, during the creation of the 2003 Will, went unrecorded by the Will drafter. From this, the Court inferred that the deceased had not conveyed this information.

Accordingly, the Court determined that it was unlikely that the “friend” existed, having regard to the mental illness and reclusive personality of the deceased, who lacked testamentary capacity when making the 2003 Will. Probate over the 1997 Will was therefore granted.

Comment: This is an unusual and interesting case, however it highlights a number of matters including the importance of a Will drafter to have clear and detailed notes to record the Willmaker’s intentions. There is no doubt that the capacity of the Willmaker was a huge issue in these circumstances and thje case demonstrates the difficulties that can arise for the Will drafter when assessing capacity, particularly in circumstances where the Willmaker may appear to have capacity at different times.