Dementia, a Late-Life Will, and a 2.5% Gift to the Closest Relative: When does the Court still uphold testamentary capacity and knowledge and approval?

Based on the authentic Australian judicial case S PRB 2021 03413; [2025] VSC 287, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Supreme Court of Victoria, Probate Jurisdiction (Trusts, Equity and Probate List)
• Presiding Judge: McDonald J
• Cause of Action: Probate caveat dispute; challenge to admission of a will to probate on grounds of lack of testamentary capacity, lack of knowledge and approval, and alleged suspicious circumstances
• Judgment Date: 23 May 2025
• Core Keywords:
  • Keyword 1: Authentic Judgment Case
  • Keyword 2: Testamentary capacity
  • Keyword 3: Knowledge and approval
  • Keyword 4: Suspicious circumstances
  • Keyword 5: Dementia and cognitive decline
  • Keyword 6: Probate caveat and burden shifting

Background

This dispute arose after the death of the Deceased, a woman who had lived an intensely independent life and who had never married or had children. In the months before she signed her first and only will, her driving licence was suspended on medical grounds and her long-standing care arrangements began to tighten. Her closest relative, later the Defendant in this proceeding, had been assisting with appointments and financial matters and had formal authority under enduring documents. At the same time, other extended family members re-entered the Deceased’s social orbit.

Within days of the driving suspension and amid increasing conflict about the Deceased’s future living arrangements, the Deceased contacted a solicitor unknown to her previously, gave instructions for a will, and shortly after executed it. The will was short and simple in structure but dramatic in effect: it reduced the Defendant’s personal share of the estate to 2.5% and distributed the bulk to other relatives.

The fight that followed was not merely about money. It was about the integrity of decision-making at the edge of cognitive decline: whether a person diagnosed with dementia can still validly make a will, and how the Court should weigh a medical assessment conducted months later against contemporaneous evidence from a solicitor and surrounding circumstances.

Core Disputes and Claims

• Plaintiff’s position (Executor/Propounder):
  • Sought admission of the will to probate.
  • Asserted the Deceased had testamentary capacity at the time of giving instructions and execution.
  • Asserted the Deceased knew and approved the contents of the will, and the will was duly executed.
  • Contended the alleged “suspicious circumstances” did not displace the presumption of knowledge and approval, or were answered by affirmative evidence.
• Defendant’s position (Caveator/Objector, acting by litigation guardian):
  • Sought to uphold the caveat and prevent probate of the will.
  • Alleged the Deceased lacked testamentary capacity at or shortly before execution.
  • Alleged the Deceased did not know and approve the contents of the will.
  • Alleged the will was executed in suspicious circumstances.
  • Contended that if the will failed on any ground, the estate would pass on intestacy in a way that favoured the Defendant.

In practical terms, the Court was required to determine whether the will-making moment in October 2010 was legally valid, notwithstanding dementia, later cognitive decline, and the sharp reduction of the Defendant’s benefit.

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Chapter 2: Origin of the Case

The story begins with a life shaped by autonomy. The Deceased’s independence was not a personality quirk; it was her identity in action. She continued driving into advanced age and remained living in her own home. Those two facts mattered because the case was not simply about dementia; it was about what happens when independence collides with institutional safety systems.

Over time, the Deceased’s memory difficulties became more noticeable to others. Health services and clinicians documented concerns, including resistance to assessments, episodes of suspicion, and a tendency to minimise problems. An assessment process culminated in a specialist report that contributed to the suspension of her driving licence. For a person who measured freedom by a set of car keys, that suspension was experienced as a profound loss.

At around the same time, the Defendant raised the prospect of permanent residential care. From the Deceased’s perspective, this could feel like the next step in a chain: first the licence, then the home. Whether or not that perception was fair, it became emotionally powerful. The evidence accepted by the Court supported that the Deceased believed the Defendant was “involved” in the licence suspension and was considering residential care, and that the Deceased was furious.

This is where litigation risk often starts: when family caregiving mixes with formal legal authority and the older person begins to feel controlled. The Deceased had already appointed the Defendant under enduring documents. Those documents were intended to protect, but they can also become the spark for resentment when the donor feels their autonomy shrinking.

Within days of being told her licence would be suspended, the Deceased initiated a new legal step: she sought out a solicitor to prepare a will. That timing was not incidental; it was central. It placed the will in the shadow of conflict, anger, and changing cognitive function.

The solicitor attended the Deceased’s home, took instructions, prepared a draft, and later returned for execution with staff who witnessed the signing. The meeting for execution was brief, but it was not silent. According to the Court’s findings, there was a meaningful discussion and the Deceased raised a further point about potentially providing for other cousins, suggesting she understood both the “named” beneficiaries and the existence of “unnamed” relatives.

After the will was executed, the Deceased’s cognitive health continued to decline. Several months later, a medical practitioner assessed her testamentary capacity and concluded she did not have it. That later conclusion became the spearhead of the challenge: if she lacked capacity in April 2011, the Defendant argued, why would she have had it in October 2010?

The proceeding, ultimately, forced the Court to draw a careful line through time: to identify the Deceased’s mental functioning at the precise will-making moment, and to decide whether later decline and later medical assessments should be treated as decisive, supportive, or misleading.

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Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

1. Solicitor’s contemporaneous file notes and usual practice evidence

– File note of the initial instruction meeting recorded the solicitor’s assessment that the Deceased “fully understood the concept of Wills”, the role of an executor, the need to nominate beneficiaries, and could describe her assets as house, shares, and bank accounts.
– The note recorded a coherent distribution plan: percentages allocated in a structured way and a request that beneficiary details be obtained from another person because the Deceased could not recall all names.
– The solicitor gave evidence of usual practice: face-to-face instructions, explaining the role of executors and beneficiaries, assessing understanding through conversation, and being especially cautious with elderly clients.

1. Execution evidence and attestation

– Evidence that the will was duly executed.
– Evidence from those who attended the execution: solicitor, another solicitor witness, and a staff member witness. Even where personal recollection was limited, usual practice and lack of observed difficulty were relevant.

1. Circumstantial evidence of motive and rational explanation

– Evidence that the Deceased was angry with the Defendant about the licence suspension and residential care discussions.
– Argument that an angry motive does not equal incapacity; a person can make an unfair will while still having capacity.

1. Evidence of a meaningful will-making process

– The will was drafted and sent in advance.
– The Deceased initiated the process and wanted secrecy from the Defendant.
– A later discussion about adding other cousins suggested reflective engagement with the distribution.

Respondent’s Main Evidence and Arguments

1. Medical evidence pointing to dementia and impaired decision-making

– Specialist diagnosis of dementia before execution.
– Later medical assessments concluding lack of capacity and pointing to paranoia, delusions, poor insight, and executive dysfunction.
– Reliance on a formal capacity assessment conducted months after the will, including the Deceased’s inability to correctly recount how the will was made.

1. Suspicious circumstances said to undermine knowledge and approval
   The Defendant relied on a cluster of alleged suspicious circumstances, including:

– Advanced age and documented memory loss.
– The will was prepared by a solicitor previously unknown to the Deceased.
– Hearing difficulties and the risk that she may not have heard explanations.
– The will was her first will, despite previous comments suggesting reluctance to make one.
– Alleged errors in the will and omissions of certain family members.
– The involvement of a beneficiary in connecting the Deceased with the solicitor.
– Lack of detailed file notes recording the explanation of the will at execution.

1. Attack on the solicitor’s capacity assessment

– Cross-examination focused on what was not in the file notes: no recorded open-ended questioning, no recorded exploration of prior wills, no recorded inquiry into dementia diagnosis, limited detail about relationships and “natural claims”.
– Submission that a solicitor’s evidence should not be given weight if practice is deficient.

1. Alternative attack: severance of a charging clause

– Argument that a clause allowing a solicitor-trustee to charge professional fees should be severed if there was no knowledge and approval of that clause, especially where the solicitor did not explain commission rights under legislation.

Core Dispute Points

1. Timing problem: October 2010 versus April 2011

– The crucial factual contest was whether the Deceased’s cognitive decline was static or worsening, and whether later incapacity proved earlier incapacity.

1. Capacity versus fairness

– Whether an apparently harsh disposition (reducing a close relative to 2.5%) suggests lack of capacity, or is consistent with a competent but angry testator.

1. Knowledge and approval and the presumption

– Whether suspicious circumstances displaced the presumption of knowledge and approval that arises after due execution and capacity are proved, and if displaced, whether the Plaintiff provided sufficient affirmative evidence.

1. The role of “usual practice” evidence

– Whether usual practice evidence can carry the day where the solicitor lacks detailed recollection and file notes are incomplete, and what “deficient practice” looks like in a probate contest.

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Chapter 4: Statements in Affidavits

Affidavits are not merely containers of facts. They are strategic narratives written under oath, designed to shape what the Court will perceive as the “centre of gravity” of the dispute.

In a probate caveat contest like this, affidavits often perform three functions:

1. They freeze memory into a record
   A witness may later become unavailable, less reliable, or harder to cross-examine. The affidavit anchors their version early.

2. They curate detail
   Affidavits choose which facts to narrate and which to compress. The Court often detects persuasion in what is emphasised and what is conveniently vague.

3. They set up cross-examination targets
   A careful affidavit makes a witness harder to impeach; a careless one gives the other side a checklist of admissions to extract.

Comparing How Each Side Framed the Same Facts

• The Plaintiff’s affidavit-driven story tended to frame the will-making moment as structured, professional, and grounded in the Deceased’s expressed intentions:

  • The Deceased initiated contact through a trusted intermediary.
  • A draft was sent in advance.
  • The solicitor’s usual practice included explanation and checks for understanding.
  • The Deceased’s motivation was clear and human: anger and desire for control.
• The Defendant’s affidavit-driven story tended to frame the same moment as medically risky and morally suspicious:
  • The Deceased had dementia and was resistant to assessment.
  • She had poor insight, episodes of suspicion, and hearing problems.
  • The execution meeting was short.
  • She later gave a confused and inaccurate account of the will’s creation.
  • A beneficiary’s involvement in connecting her to the solicitor raised the risk of influence.

In disputes like this, the same fact can cut both ways. A short execution meeting can suggest a perfunctory signing without understanding, or it can reflect a short will and a prepared testator.

Strategic Intent Behind Procedural Directions About Affidavits

In a contested probate matter:
– The Court’s procedural directions often push parties to identify the precise grounds of objection and confine evidence to those grounds.
– Affidavits become a method of triaging the contest: who will be called, on what topics, and whether the dispute is really about capacity, or is covertly about family grievance and perceived betrayal.

Where a party acts by litigation guardian, the Court will also be alive to the fairness of the process and the reliability of the party’s evidence, because a litigation guardian can change the dynamic: the factual account might be filtered through another person’s decisions, even if it remains sworn by the party.

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Chapter 5: Court Orders

Before a final hearing in a probate caveat dispute, the Court commonly makes procedural arrangements to ensure the case can be decided on the best available evidence. In this proceeding, the following types of directions were necessary in substance:

• Timetabling directions for:
  • Filing and service of affidavits.
  • Exchange of expert evidence, including medical reports addressing capacity.
  • Preparation of a consolidated court book and tender lists.
• Directions about witnesses:
  • Identification of lay witnesses who could speak to the Deceased’s functioning around the will-making period.
  • Attendance of the solicitor and attesting witnesses.
  • Consideration of whether any witness required special handling due to vulnerability or capacity concerns.
• Management of the caveat contest:
  • Clarification and amendment of grounds of objection.
  • Preparation for a multi-day hearing involving cross-examination and expert opinion.
• Post-judgment directions foreshadowed by the Court:
  • After delivering reasons, the Court indicated the parties would have an opportunity to make submissions as to the form of orders and costs.

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Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing in this matter ran across multiple days. That is itself a signal: the Court anticipated that credibility, chronology, and cross-examination would be central. This was not a paper dispute. It was a contest where the Court needed to see how witnesses stood up in real time.

Process Reconstruction: Live Restoration

The cross-examination strategy reflected the classic structure of a capacity contest:

1. Attack the “moment of capacity”
   The Defendant’s counsel sought to show that the solicitor’s assessment was inadequate because it was not anchored to the legal test and because file notes omitted key areas: prior wills, dementia diagnosis, deeper exploration of family relationships, and “natural claimants”.

2. Undermine “usual practice” reliability
   The cross-examination tested whether the solicitor’s usual practice, even if sensible in general, was actually followed here. The lack of detailed notation was used to argue that what was not recorded was not done.

3. Use later medical assessments as a lever
   The Defendant used the later medical assessments not just to prove incapacity later, but to suggest a steady-state condition that must have existed at the will-making time.

4. Build a suspicion narrative through accumulation
   Rather than relying on a single “smoking gun”, the Defendant sought to build an atmosphere: age, dementia, hearing, first will, beneficiary involvement, errors, short meeting, later confusion. The aim was to shift the case from “ordinary will” to “suspicious will”, thereby forcing the Plaintiff into affirmative proof.

Core Evidence Confrontation

Two confrontations stood out as decisive in logic:

1. The time-gap confrontation: October 2010 versus April 2011
   A central problem for the Defendant was the time gap. The medical practitioner assessed capacity months later and concluded lack of capacity. But the Court was required to decide capacity at the time of giving instructions and execution.

The Plaintiff’s answer was evidentiary chronology: the Deceased’s cognitive function declined significantly between those dates. If decline was significant, then April 2011 would not be a reliable proxy for October 2010.

The Defendant’s answer was conceptual continuity: dementia does not appear overnight, and the diagnosis already existed before the will, so later incapacity likely existed earlier.

The Court’s task was to choose which story was better supported by the evidence. The judgment shows that the Court placed substantial weight on evidence supporting decline across the period and treated the later account of will-making as unreliable for what happened earlier.

1. The motive confrontation: anger versus delusion
   The Defendant’s case sought to convert anger into pathology: that the Deceased’s ill-will toward the Defendant was not merely unreasonable, but the product of mental disorder that “poisoned affections” in the Banks v Goodfellow sense.

The Plaintiff’s case treated the anger as an ordinary human reaction to losing a licence and fearing residential care, even if unfair, and argued that the law permits a person to act unreasonably without losing capacity.

Judicial Reasoning

At the heart of the Court’s reasoning was a disciplined insistence that the legal test is not a moral test. The Court did not ask whether the will was kind or socially expected. It asked whether, at the relevant time, the Deceased understood:
– the nature and effect of making a will,
– the broad extent of her property,
– the people who might have a claim on her bounty,
– and whether any disorder of mind drove the disposition in a legally disabling way.

The Court also treated knowledge and approval through a structured burden framework:
– If capacity and due execution are proved, a presumption of knowledge and approval arises.
– If suspicious circumstances are shown, the presumption can be displaced and the Plaintiff must provide affirmative evidence.

Judicial Original Quotation Principle

“The law treats as critical ‘the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.’”
Re Estate of Griffith (1995) 217 ALR 284, 290.

This principle was determinative because it provided the bridge between facts and law. The Deceased’s anger could be intense and even unreasonable, but unless it was shown to be driven by disordered thinking that legally disabled her judgment, the will could still stand.

“A presumption that the testator knew and approved the contents of the will arises once it is proved that the testator had testamentary capacity and the will was duly executed.”
Veall v Veall (2015) 46 VR 123, 174–5 [169].

This passage mattered because it explains why the Defendant’s “suspicion narrative” was not enough by itself. Suspicion must do legal work: it must displace a presumption, shifting the burden, not merely create discomfort.

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Chapter 7: Final Judgment of the Court

The Court upheld the will.

• The Court determined that, at the time the Deceased gave instructions and executed the will, she had testamentary capacity.
• The Court determined that the Deceased knew and approved the contents of the will, including the contested charging clause.
• The Court rejected the submission that any clause should be severed for lack of knowledge and approval.
• The Court stated that the will dated 18 October 2010 would be admitted to probate.
• The Court indicated the parties would be given an opportunity to make submissions as to the form of orders giving effect to the judgment and on costs.

In practical effect, the caveat challenge failed at the level of reasons for decision, and the Plaintiff succeeded in establishing that the will should proceed to probate.

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Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This judgment is valuable because it shows how Australian courts deal with three recurring features in modern probate disputes:

1. Dementia does not automatically negate testamentary capacity
   A diagnosis is a warning sign, not a legal conclusion. Capacity is task-specific and time-specific. A person with dementia can have lucid intervals and can still satisfy Banks v Goodfellow at a particular time.

2. The Court’s reluctance to treat later incapacity as a time machine
   Many families assume a later medical opinion settles the past. This case illustrates the opposite: later deterioration may make later accounts unreliable and may not reflect earlier functioning. The Court required a careful chronology of cognitive decline and did not allow April 2011 to “overwrite” October 2010.

3. The “unfair will” trap
   A will that cuts down a close relative is often treated as suspicious by laypeople. The Court emphasised that unfairness is not invalidity. A testator can be angry, stubborn, and even unreasonable, and still be legally competent.

4. The modern lens on Banks v Goodfellow
   The judgment engaged with modern authorities acknowledging that Banks v Goodfellow is a nineteenth-century articulation that must be applied with modern medical awareness. The Court’s approach reflects the broader judicial trend: capacity law must allow for natural cognitive decline while still demanding deliberative choice.

Judgment Points

This section sets out 8 detailed “victory points” showing how evidence and law aligned to sustain the will.

Victory Point 1: The Court anchored capacity to the precise time of instruction and execution

Statutory Provisions: Not the primary driver; the capacity test is common law (Banks v Goodfellow).

Evidence Chain:
– The will instructions were given on 1 October 2010 and the will executed on 18 October 2010.
– A later assessment of testamentary capacity occurred months later and concluded incapacity.
– The Court accepted evidence supporting a significant cognitive decline between October 2010 and April 2011.

Judicial Original Quotation:

“It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect…”
Banks v Goodfellow (1870) LR 5 QB 549, 565.

Why determinative:
The Court treated capacity as a snapshot at the will-making moment, not as a general label attached to a person. That approach prevented the Defendant from winning by simply proving that the Deceased deteriorated later.

Losing Party’s Failure:
The Defendant’s case relied heavily on later incapacity evidence and later confusion about the will’s making. That evidence did not compel a conclusion about October 2010 once the Court accepted a trajectory of decline.

Victory Point 2: The Court treated irrational motives as permissible unless driven by disordered thinking

Statutory Provisions: Not primary; common law distinction between antipathy and delusion.

Evidence Chain:
– The Deceased was furious about the suspension of her driving licence and distressed about residential care discussions.
– The Deceased believed the Defendant was involved in the suspension and was considering placing her in care; the Court accepted that belief had an evidentiary basis and was not necessarily delusional.
– The will’s distribution aligned with that anger and desire to control the Defendant’s benefit.

Judicial Original Quotation:

“The law treats as critical ‘the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.’”
Re Estate of Griffith (1995) 217 ALR 284, 290.

Why determinative:
This principle allowed the Court to say, in effect: the Deceased’s decision may have been harsh, but harshness is not insanity. The Defendant needed to prove that the disposition was produced by mental disorder in the Banks v Goodfellow sense, not merely by anger.

Losing Party’s Failure:
The Defendant attempted to characterise the Deceased’s belief and anger as delusion-driven. The Court found that the underlying facts supported the Deceased’s belief that the Defendant was “involved” and that care was being considered, so the mental disorder link was not made out.

Victory Point 3: The solicitor’s contemporaneous file notes functioned as a credibility anchor

Statutory Provisions: Not primary.

Evidence Chain:
– The solicitor’s file note recorded a coherent description of assets and a structured distribution plan, including precise percentages and identification of beneficiaries.
– The Deceased’s distribution plan reflected deliberate choices about relative shares, not random naming.

Judicial Original Quotation:

“An experienced solicitor’s evidence is capable of being valuable evidence of testamentary capacity…”
Gooley v Gooley [2021] NSWSC 56.

Why determinative:
Even where the solicitor’s practice was not perfect and file notes were not exhaustive, the contemporaneous record of a coherent plan, coupled with credible oral evidence, strongly supported capacity.

Losing Party’s Failure:
The Defendant’s cross-examination succeeded in extracting admissions about what was not recorded, but not enough to show that the solicitor’s engagement was so deficient that it should be ignored.

Victory Point 4: The Court accepted “usual practice” evidence because the practice was not shown to be deficient

Statutory Provisions: Not primary.

Evidence Chain:
– The solicitor gave evidence of usual practice: face-to-face instructions, explaining executors and beneficiaries, probing understanding, and special caution with elderly clients.
– The Court accepted that the solicitor followed that practice when taking instructions and at execution.

Judicial Original Quotation:

“Equally a solicitor’s evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection … but gives evidence of his or her usual practice … However the Court ought not accept the evidence of a solicitor … where the solicitor’s usual practice or conduct … is deficient…”
Gooley v Gooley [2021] NSWSC 56.

Why determinative:
This is a key practical lesson: usual practice evidence works when the Court trusts the witness and does not find their method deficient. The Court found the solicitor credible and did not accept that his practice was deficient.

Losing Party’s Failure:
The Defendant’s strategy required showing deficiency, not merely imperfection. The Court was not persuaded that omissions in notes equalled defective practice, especially where the will was short and the Deceased appeared to respond meaningfully.

Victory Point 5: The Court dealt with “suspicious circumstances” through the correct legal mechanism, not intuition

Statutory Provisions: Not primary.

Evidence Chain:
– The Defendant listed multiple suspicious circumstances: age, dementia, hearing, first will, beneficiary involvement, alleged drafting errors, short meeting, lack of detailed file notes.
– The Plaintiff answered suspicion with affirmative evidence: file notes, draft sent in advance, Deceased initiated the will-making process, and meaningful discussions at execution.

Judicial Original Quotation:

“The circumstances sufficient to displace the presumption of knowledge and approval must give rise to a suspicion that the testator either did not know the true contents of the will or did not assent to them.”
Veall v Veall (2015) 46 VR 123, 184 [193].

Why determinative:
This quote clarifies that not every concern is the relevant kind of suspicion. The suspicion must be about knowledge and assent to contents, not simply about influence, family politics, or unfairness.

Losing Party’s Failure:
The Defendant’s suspicions were not accepted as demonstrating that the Deceased did not understand the will’s contents. The Court treated the will’s simplicity and the process as tending against such a suspicion.

Victory Point 6: The Court neutralised the “later confused account” by treating it as evidence of decline, not of original invalidity

Statutory Provisions: Not primary.

Evidence Chain:
– Months after execution, the Deceased gave an account suggesting a relative arrived with a pre-drawn will, she signed to “get rid of them”, and her assets were “not all that great”.
– The Court found the account factually incorrect and inconsistent with the actual will-making process.
– The Court accepted that cognitive function had significantly declined between October 2010 and the later assessment.

Judicial Original Quotation:

“Rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.”
Roche v Roche [2017] SASC 8 (as cited with approval in later Victorian authority).

Why determinative:
The later inaccurate account, rather than proving the will was suspicious at creation, became evidence that the Deceased’s later memory was unreliable. That protected the validity of the earlier will-making moment.

Losing Party’s Failure:
The Defendant attempted to treat later confusion as proof of earlier confusion. The Court instead treated it as evidence of deterioration.

Victory Point 7: The Court found that knowledge and approval extended to the charging clause, despite imperfect explanation

Statutory Provisions:
– Administration and Probate Act 1958 (Vic) s 65 (commission)

Evidence Chain:
– The charging clause allowed a solicitor-trustee to charge usual professional fees for proving the will and administration.
– The solicitor did not mention the possibility of commission under s 65 when explaining the clause.
– The Court accepted the clause was explained as covering legal fees, and held the omission about s 65 commission did not negate knowledge and approval because the commission right did not arise under the clause itself.

Judicial Original Quotation:

“The most satisfactory evidence of actual knowledge … is evidence of instructions given by the testator for the will, or that the will was read over by or to the testator.”
Singh v Singh [2018] NSWCA 30, [171].

Why determinative:
The Court separated two concepts: fees authorised by the will clause and statutory commission authorised by legislation. The failure to mention a separate statutory possibility did not destroy knowledge and approval of the clause that was, in substance, explained.

Losing Party’s Failure:
The Defendant’s severance argument collapsed because it treated the solicitor’s omission about commission as if it showed the Deceased did not understand the clause at all.

Victory Point 8: The Court recognised the Deceased’s structured allocation as evidence of deliberation

Statutory Provisions: Not primary.

Evidence Chain:
– The will divided the estate into 20 parts and allocated them in an internally consistent pattern.
– The Deceased’s plan reflected evaluation and discrimination between claimants, even if harsh.

Judicial Original Quotation:

“A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.”
Roche v Roche [2017] SASC 8 (principle cited with approval in modern authority discussing cognitive impairment and capacity).

Why determinative:
The structured distribution supported deliberation: the Deceased was not merely naming people; she was ranking them and allocating shares in a way that reflected a chosen purpose.

Losing Party’s Failure:
The Defendant focused on “how could a close relative only receive 2.5%?” but the law asks a different question: “was the choice deliberate and understood?”

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Legal Basis

The key legal framework used by the Court included:

• Testamentary capacity test:
  • Banks v Goodfellow (1870) LR 5 QB 549.
  • Australian authorities applying and modernising the test, including:
  • Kantor v Vosahlo [2004] VSCA 235.
  • Haberfield v Larsson [2023] VSC 161.
  • Roche v Roche [2017] SASC 8 (modern articulation discussed in later cases).
• Knowledge and approval:
  • Presumption arising after due execution and capacity.
  • Displacement by suspicious circumstances and the burden shift.
  • Veall v Veall (2015) 46 VR 123.
  • Nicholson v Knaggs [2009] VSC 64 (solicitor-prepared will as powerful but not conclusive evidence).
• Distinguishing antipathy from disorder:
  • Re Estate of Griffith (1995) 217 ALR 284.
• Fees and administration:
  • Administration and Probate Act 1958 (Vic) s 65 (commission), considered in the context of the charging clause dispute.

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Evidence Chain

A simplified chain showing how the Court reached its core conclusions:

1. Dementia diagnosis existed before the will, but diagnosis is not decisive of will-making capacity.

2. At the time of instruction and execution:

– The Deceased gave a coherent asset description: property, shares, bank accounts.
– The Deceased gave structured beneficiary instructions and clear percentages.
– The Deceased responded meaningfully and discussed possible further modifications.

1. At execution:

– The will was short and capable of being read and explained quickly.
– No attendee observed hearing or comprehension problems sufficient to undermine understanding.

1. After execution:

– Cognitive decline intensified.
– A later medical assessment found incapacity, but the Deceased’s later account was factually wrong and treated as evidence of later decline.

1. The Court preferred contemporaneous professional evidence and credible witness evidence about the will-making moment over retrospective conclusions about that earlier time.

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Judicial Original Quotation

“A presumption that the testator knew and approved the contents of the will arises once it is proved that the testator had testamentary capacity and the will was duly executed.”
Veall v Veall (2015) 46 VR 123, 174–5 [169].

“It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property …; shall be able to comprehend and appreciate the claims …”
Banks v Goodfellow (1870) LR 5 QB 549, 565.

“The law treats as critical ‘the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.’”
Re Estate of Griffith (1995) 217 ALR 284, 290.

Each of these statements was determinative because each corresponds to a gateway issue:
– Banks governs capacity.
– Veall governs knowledge and approval and burden shifting.
– Griffith governs whether hostility is legally disabling.

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Analysis of the Losing Party’s Failure

The Defendant’s challenge failed for reasons that are instructive for future litigants:

1. Over-reliance on a later assessment to prove an earlier moment
   The Defendant’s strongest material was the later medical assessment. But the Court required proof of October 2010. Once the Court accepted significant decline after October 2010, the later assessment became less probative of the earlier moment.

2. Confusing suspicion with proof
   Suspicious circumstances can shift burdens, but they do not, by themselves, establish invalidity. The Court required suspicion that the Deceased did not understand the will’s contents or did not assent to them, not just discomfort about the circumstances.

3. Treating harshness as incapacity
   The Defendant implicitly relied on a social expectation: “the closest relative should inherit most”. The Court applied the law: a person can make a harsh will, even an unreasonable one, and still be competent.

4. Failure to prove that anger was delusion-driven
   The Defendant attempted to elevate anger into disordered thinking. The Court accepted that the Deceased’s beliefs had a factual basis and that the anger was not shown to be the product of a disabling disorder.

5. Not dislodging the solicitor’s credibility
   Cross-examination revealed omissions, but the Court ultimately trusted the solicitor as a witness and accepted his usual practice evidence. Without proving deficient practice, the Defendant could not neutralise that evidence.

6. Severance argument lacked a firm legal footing
   The severance argument concerning the charging clause depended on proving lack of knowledge and approval of that clause. The Court rejected that premise and also treated the s 65 commission point as legally distinct.

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Key to Victory

The Plaintiff’s winning combination was:

• A coherent contemporaneous record (file notes) showing a structured plan.
• Credible evidence that the Deceased initiated the will process and had a clear motive.
• A burden structure argument: capacity plus due execution supports a presumption of knowledge and approval, and even if suspicion existed, affirmative evidence answered it.
• A chronology that explained why later incapacity did not prove earlier incapacity.

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Reference to Comparable Authorities

• Banks v Goodfellow (1870) LR 5 QB 549
  Ratio: A will is valid if the testator understands the nature and effect of making the will, the broad extent of property, the claims of potential beneficiaries, and is not driven by delusion that distorts disposition.

• Veall v Veall (2015) 46 VR 123
  Ratio: Once capacity and due execution are proved, a presumption of knowledge and approval arises; suspicious circumstances can displace the presumption and shift the burden to the propounder to provide affirmative proof.

• Kantor v Vosahlo [2004] VSCA 235
  Ratio: Restates the functional requirements of capacity as knowing what one is doing and the effect of dispositions, the estate to dispose of, and potential claimants.

• Haberfield v Larsson [2023] VSC 161
  Ratio: Illustrates modern judicial approach to cognitive impairment and capacity, and the need to evaluate evidence holistically rather than relying on diagnosis labels.

• Re Estate of Griffith (1995) 217 ALR 284
  Ratio: Distinguishes unreasonable antipathy from mental disorder that legally disables testamentary decision-making.

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Implications

1. Capacity is a moment, not a label
   If you are dealing with an elderly relative with cognitive impairment, the legal question will rarely be “did they have dementia?” It will be “what was their understanding on that day, at that time, for that task?”

2. A harsh will is not automatically a suspicious will
   The law does not guarantee “fairness” in distributions. It protects free choice, even when that choice disappoints family expectations.

3. If you fear a will contest, build a contemporaneous record
   For testators: a careful process matters. For practitioners: robust file notes, open-ended questions, and contemporaneous checks are the difference between a will that survives and a will that collapses.

4. Later medical evidence may cut both ways
   A later assessment can support a challenge, but it can also prove that decline occurred after the will, making later confusion less probative of earlier validity.

5. Suspicious circumstances must be legally targeted
   If you allege suspicion, you must connect it to the specific legal concern: knowledge of the true contents and assent to them. General unease is not enough.

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Q&A Session

Q1: If a person has dementia, can they still legally make a will?

Yes, depending on the evidence. The legal test focuses on whether the person understood the nature and effect of making a will, had a broad understanding of their property, could appreciate potential claimants, and was not driven by disordered thinking that distorted the disposition. A diagnosis is relevant but not conclusive.

Q2: Does a later medical opinion that the person lacked capacity automatically invalidate an earlier will?

No. The Court will look at whether the person’s cognitive function changed over time. If evidence shows significant decline after the will, later incapacity does not necessarily prove earlier incapacity.

Q3: What kinds of facts usually count as “suspicious circumstances” in a will dispute?

Common examples include: unusual involvement of a beneficiary in the will’s preparation, a drastic change from previous intentions, vulnerable testator circumstances, communication barriers such as hearing issues, and gaps in how the will was explained or executed. But suspicion must connect to whether the testator understood and assented to the will’s contents.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

• Case Subtype: Probate caveat dispute; contested will validity on grounds of testamentary capacity and knowledge and approval
• Judgment Nature Definition: Final Judgment (Reasons for Decision determining validity and admission to probate)

2. Self-examination of Core Statutory Elements

This case primarily turns on common law tests for capacity and knowledge and approval, but a rigorous self-check can be structured as follows. These are for reference only and must be assessed against the specific evidence in any particular case.

Core Test (Validity: Testamentary Capacity)

Step 1: Did the testator understand the nature and effect of making a will?
– Look for evidence the testator understood they were making a legally binding document that would control distribution after death.
– Practical indicators: ability to explain what a will does; ability to articulate that it takes effect upon death; ability to describe the role of executor and what happens to assets.

Step 2: Did the testator understand the broad extent of their property?
– The testator does not need precise valuation, but must have a workable sense of what they own.
– Practical indicators: identifying major asset categories such as home, bank accounts, investments; recognising that the estate has substantial value even if unable to state exact amounts.

Step 3: Did the testator comprehend and appreciate the claims of potential beneficiaries?
– The testator must be able to identify those who might reasonably have a claim on their bounty, and to evaluate those claims.
– Practical indicators: recognition of close relatives; ability to explain why some are favoured and others excluded or reduced; awareness that exclusion may be controversial.

Step 4: Was the testamentary decision affected by mental disorder, delusion, or cognitive impairment in a way that distorted the disposition?
– This is often the most contested step.
– The test is not whether the testator was angry, stubborn, or unreasonable. The question is whether disordered thinking drove the disposition in a legally disabling way.
– Practical indicators: fixed false beliefs without evidentiary basis; paranoid ideation driving distribution; inability to correct obvious falsehoods when confronted with reality; disorganised reasoning that prevents deliberate choice.

Step 5: Is there evidence of fluctuating cognition and lucid intervals?
– Modern capacity analysis recognises that cognitive impairment can fluctuate.
– Practical indicators: consistent coherent functioning at certain times; better performance in structured professional interviews; evidence that the testator engaged meaningfully in will discussions at the relevant time.

Core Test (Knowledge and Approval)

Step 1: Was the will duly executed?
– Ensure compliance with formal execution requirements: signature, witnessing, and attestation.

Step 2: Is testamentary capacity established?
– Once due execution and capacity are established, a presumption of knowledge and approval generally arises.

Step 3: Are there circumstances that give rise to a suspicion that the testator did not know the true contents of the will or did not assent to them?
– Suspicion must be targeted to knowledge and assent, not merely to influence or family conflict.
– Examples that may carry relatively high risk: beneficiary involvement in drafting, testator communication barriers, unexplained radical changes, the will being read neither by nor to the testator, rushed execution without explanation.

Step 4: If suspicion is raised, can the propounder provide affirmative proof of actual knowledge and approval?
– Strong evidence tends to include: detailed instructions given by the testator, evidence the will was read over by or to the testator, solicitor file notes demonstrating explanation and comprehension, and independent witnesses supporting understanding.

Core Test (Undue Influence and Fraud Risk Awareness)

Even where not pleaded, practitioners should consider whether the factual matrix tends to raise influence concerns. The test for undue influence in probate is demanding and often difficult to prove directly, but risk factors can overlap with suspicious circumstances.
– Indicators: isolation, dependency, beneficiary control over communications, secrecy, and sudden changes without professional safeguards.

Core Test (Family Provision Claims: Separate Pathway)

Even if a will is valid, disappointed relatives sometimes pursue a family provision claim. This is legally distinct from a validity contest.
– The key question is whether adequate provision was made for the proper maintenance and support of an eligible applicant.
– In practice, a person receiving 2.5% may still consider this path, depending on eligibility, needs, and the estate size.

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3. Equitable Remedies and Alternative Claims

In wills and estates disputes, Equity and ancillary doctrines often become relevant when a validity challenge is weak or uncertain. These avenues can be feasible but tend to carry uncertainty and must be assessed with the evidence.

Promissory / Proprietary Estoppel

• Did the Deceased make a clear and unequivocal promise or representation about inheritance or property?
  Examples: “This house will be yours”, “I will leave you my shares”, “You will be looked after in my will”.

• Did the claimant act in reliance on that promise to their detriment?
  Examples: providing unpaid care, paying for renovations, foregoing employment opportunities, moving in, or funding expenses.

• Would it be unconscionable for the estate to resile from the promise?
  The Court’s focus is conscience. The stronger the reliance and detriment, the more persuasive the equity.

Result Reference: Even without a written contract, Equity may in some circumstances prevent the estate from denying the promise, but the risk is relatively high unless the promise and detriment are clearly proved.

Unjust Enrichment / Constructive Trust

• Has the estate or another beneficiary received a benefit at the claimant’s expense?
  Examples: unpaid labour, direct payments, funding improvements.

• Is it against conscience for that benefit to be retained without compensation?
  The inquiry is fact-sensitive and often contested.

Result Reference: The Court may order restitution or recognise a beneficial interest in an asset via constructive trust in appropriate circumstances, but proof burdens can be demanding.

Procedural Fairness and Public Law (Rare in Probate Validity)

Generally, probate validity disputes are private law matters. However, procedural fairness concepts can arise indirectly:
– If a party’s vulnerability required special procedural protections.
– If capacity of a litigant affects how evidence is received and tested.

This does not typically create a separate cause of action but can influence case management and credibility findings.

Ancillary Claims: Costs and Indemnity Issues

Even where a caveat fails, costs in probate are not purely mechanical. The Court may consider:
– whether the caveat was reasonably lodged,
– whether there were genuinely suspicious circumstances warranting investigation,
– whether parties acted reasonably in litigation conduct.

This is context-dependent and tends to be determined after submissions.

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4. Access Thresholds and Exceptional Circumstances

In wills and estates disputes, “hard thresholds” often determine whether a claim can be brought and how it is framed.

Regular Thresholds

• Caveat and probate procedure thresholds:
  • A caveat must be lodged in accordance with probate registry practice and maintained properly.
  • Grounds of objection must be formulated with sufficient particularity.
• Evidentiary thresholds:
  • Testamentary capacity disputes require proof directed to the will-making time.
  • Knowledge and approval disputes require either displacement of presumption or affirmative proof if burden shifts.
  • Undue influence in probate requires strong proof; suspicion alone is rarely sufficient.
• Limitation and timing considerations:
  • Practical time pressure arises once probate is granted or administration progresses.
  • Delay can increase risk because witnesses die, memories fade, and documents disappear.

Exceptional Channels (Crucial)

• Fluctuating cognition and lucid interval arguments:
  • Where dementia exists, a will may still stand if evidence supports a lucid interval at execution.
  • The clearer the contemporaneous professional record, the lower the risk.
• Vulnerable witness and litigation guardian circumstances:
  • If a party acts by litigation guardian, the Court may scrutinise how evidence is collected and presented.
  • This does not decide the merits, but can influence weight and procedural fairness.

Suggestion: Do not abandon a potential claim simply because dementia is present or because a later medical report exists. Compare your circumstances against the precise timing evidence and the quality of contemporaneous records, as these are often decisive.

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5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in legal submissions or professional discussions involving:
– the interaction between dementia diagnosis and testamentary capacity,
– how courts handle later medical assessments versus contemporaneous solicitor evidence,
– suspicious circumstances and the presumption of knowledge and approval,
– severance arguments relating to charging clauses and the separation between will-authorised fees and statutory commission rights.

Citation Method

• As Positive Support:
  • When your matter involves a testator with cognitive impairment but evidence of coherent instructions and structured dispositions at the relevant time, this authority can support the proposition that diagnosis alone is not determinative and that contemporaneous professional evidence can carry significant weight.
• As a Distinguishing Reference:
  • If an opponent relies on this case, emphasise differences such as:
  • more complex will structure requiring deeper comprehension,
  • absence of contemporaneous file notes or credible professional evidence,
  • stronger evidence of delusion directly driving the dispositions,
  • stronger beneficiary involvement in drafting or execution,
  • communication barriers demonstrably preventing explanation and assent.

Anonymisation Rule

In any publication or submission that requires privacy protection, avoid party names and use procedural titles such as Plaintiff and Defendant, or Executor and Caveator, consistent with the court file.

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Conclusion

This judgment demonstrates a core truth of probate litigation: the Court does not validate a will because it is fair; it validates a will because the evidence shows the testator had capacity and truly understood what they signed at the relevant time.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

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Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of Victoria (S PRB 2021 03413; [2025] VSC 287), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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