Can a Will Maker’s Hallucinations and Delusions Invalidate the Will?

One of the recognised grounds for challenging a Will is that the Will maker lacked the mental (testamentary) capacity to understand what they were doing at the time it was signed. The recent case of Croft v Sanders (2019) in the NSW Court of Appeal illustrates the relatively high bar that must be met in order to make such a challenge to a Will successfully.

Croft v Sanders (2019)

Mr Croft had six daughters. In 2013, in his last Will, he bequeathed $40000 to five of the daughters with the balance of his estate of $3 million to the sixth. In an earlier Will, he had left equal shares to his daughters. When he died in 2016, two of the daughters challenged the Will on the grounds that he lacked capacity. Mr Croft had a history of hallucinations and delusions. He seemed to believe, for example, that one daughter was possessed by demons.

The Court of Appeal agreed with the primary judge. Medical evidence from the time indicated mild cognitive impairment. However, the solicitor taking the Will said that Mr Croft was clear in his instructions and the reasons why he wanted to replace the earlier Will. The Court held that the hallucinations and delusions were episodic rather than continuous. The Will was ‘a rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so’.

A diagnosis of impairment does not necessarily mean a lack of testamentary capacity. However, it does emphasise, when preparing a Will, the experience needed to be able to assess the capacity of the Will maker and follow the necessary procedures.

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