The Supreme Court of Queensland has ruled for the second time in recent months that a will maker had the requisite legal capacity and gave lucid instructions notwithstanding a doctor’s opinion that she could not make decisions about financial matters.

Toowoomba resident Robin Dohle engaged an experienced local solicitor in mid-2020 to update the will she made the year before.

He saw Robin on two occasions. The first time, the solicitor took instructions as to her wishes which did not substantially differ from the disposition of her estate provided for in the then current version.

He took details from Robin about her assets which were later confirmed as accurate, and discussed various scenarios including the potential for family provision claims and the consequences of Robin predeceasing her partner Nereo or vice versa. Nereo in fact died a week after Robin.

He saw her again when the will was signed on 18 June 2020.

At around the same time however, GP Richard Grundy issued a letter for Robin’s attorney – for the benefit of her bank so the attorney could conduct Robin’s banking – stating that she was incapable of making decisions in relation to financial matters .

The registry was unable – because of that letter – to seal probate of the will, compelling an application to the Court for a ruling on her legal capacity at the time the will was made.

When the matter came before her, Justice Frances Williams re-stated the principles that must be considered concerning capacity to make a will:

  • the onus of proving capacity – on the balance of probabilities – is on the person seeking to prove the will;
  • a presumption of validity – which can be displaced by clear evidence to the contrary – arises where there is a will properly signed and rational on its face;
  • extreme age or grave illness do not themselves establish incapacity, but may attract scrutiny; and
  • where doubt is raised as to a will maker’s memory, mind and understanding, the Court must examine the evidence to determine capacity at the relevant time.

Given the doubt the GP’s letter had raised, an examination of the evidence was called for.

Her Honour noted the GP’s testimony of not having made any formal assessment of Robin’s mental capacity; that he couldn’t say how her medication might affect her; and that in his opinion she suffered from no disorder of the mind.

She scrutinised the quality of the solicitor’s records and recollection that the instructions he received were lucid and that on both occasions he was satisfied she had the capacity to make one as Robin appeared to him to understand the concepts relevant to making a will.

Her Honour noted especially that the solicitor had taken the ever-essential steps of having the will maker recall each of her assets and rationally consider the competing interests of those to whom she was considering leaving a benefit.

Largely as a result of how the solicitor took his instructions and his observations, Justice Williams concluded that Robin had the requisite capacity at the time the will was made.

Consider a scenario though where the same will had been made via a do it yourself will kit or otherwise without the assistance of a solicitor. The result would very likely to have been – in the absence of evidence showing legal capacity – much different.

Justice Williams was also asked to rectify the will as the intended gift for her partner’s grandchildren had been incorrectly expressed as being for his children.

The error was apparent by reference to the solicitor’s records. Her Honour held that the clerical error should be rectified, absent which Robin’s intentions would not be met.

Again, if Robin had made the error in a DIY will, there would have been no independent records to assist the making of such change.

Dohle, Re [2022] QSC 4 Williams J, 3 February 2022