Did He Have Capacity?

Published in the Coffs Coast News Of The Area on 6 March 2026.

Michael has been suffering from chronic schizophrenia since the 1980s and his affairs are under the control of the Trustee and Guardian. When he passes away, his cousins stand to receive the whole of his estate, on the basis that they understand that Michael did not leave a will and that his estate would be distributed under the laws of “intestacy”.

However, it comes to light, that Michael made a Will 20 years before he passed, leaving the whole of his estate to “the Socialist party”.

Michael’s cousins dispute the validity of the will, on the belief that he lacked the mental capacity at the time the will was made.

Michael’s estate is valued at $2.5 million.

The matter proceeds to a hearing in Supreme Court of New South Wales.

The evidence indicates that Michael consulted a solicitor regarding the making of his will, and although the solicitor did not retain the file, he recalls Michael stating that “I have no family, the Socialist party is my family. There is no one else”.

The will appoints an employee of the Socialist party as Michael’s executor, although at the time of the hearing, the employee’s employment had ceased.

The solicitor states that Michael spoke in a lucid manner, and that there was no reason to suspect that his affairs were under the control of the Trustee and Guardian.

When Michael returns to sign his will, he provides his solicitor with a lengthy written statement, explaining his motivations behind the making of his will. The statement contains profanity and is difficult to follow.

Ten years after making the will, Michael writes a letter to the Protective Commissioner, asking for his will to be destroyed, stating that the solicitor was a “money grabber” and that he wants “nothing further to do with him”.

Ultimately, the Court decides that Michael’s letter to the Commissioner did not constitute a valid revocation of his will and on the basis that it was validly executed and without sufficient evidence as to Michael’s alleged incapacity at the time, declares the will valid.

This fictional column is not legal advice.