Testamentary capacity and family provision claim by adult grandchild

In the case of Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian [2016] NSWSC 1611 the deceased’s adult grandchild Helene claimed the deceased did not have testamentary capacity at the time she made her last three wills leaving her estate to two charities and, in the alternate, that no provision was not proper provision for her adequate maintenance and benefit.

The deceased, Mrs Bush, died on 31 January 2015 aged 90. Her estate was valued at approximately $1 million.  The deceased’s husband died 20 years earlier and the deceased’s two children also predeceased her.  One of the deceased’s sons left 4 adult children who were the deceased’s closest living relatives at the date she died.

Mrs Bush had made a number of Wills. In a Will dated 8 June 2011 the deceased gave her whole estate to Helene and her sisters equally.

The deceased then made three further Wills dated 22 November 2011, 12 November 2012 and 21 February 2013 leaving her whole estate equally to the Cancer Council of New South Wales and Wee Waa Anglican Church (Impugned Wills). The only difference between the three Wills was the executor.

It was up to the Trustee, which was the Defendant, to prove, on the balance of probabilities, that Mrs Bush knew of the contents of the Impugned Wills and appreciated the effect of what she was doing “so that it can be said that the Will contains her real intention and reflects her true will”.

The three Wills were prepared and witnessed by the same solicitor.

Expert evidence was given together with evidence by lay persons. Justice Stevenson found there was some lack of cognitive function, however, her Wills were simple and the dispositions rational given her involvement with the charity and church which were the beneficiaries of the 3 Impugned Wills.  Justice Stevenson found on the balance of probabilities that Mrs Bush had capacity at the time she made the 3 Wills.

In relation to the family provision claim, Helene said that she regarded her relationship with Mrs Bush as that of parent and child.

Helene was a grandchild and wholly or partly dependant on Mrs Bush. She was also a member of Mrs Bush’s household.  However, to obtain an order for provision she was required to establish further warranting factors.  Her Counsel submitted that those factors were that she was a beneficiary in the June 2011 Will, that she was in substance a de facto child of Mrs Bush and had maintained an extensive relationship with Mrs Bush throughout her life.  Those submissions were accepted by Justice Stevenson who ordered that provision should be made for Helene for a 1/5 share of the estate being the share she would have received under the June 2011 Will.

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