Legal Hypothetical: Expert’s ‘belief’ is not enough

CHERYL contacts a local solicitor and arranges an urgent hospital visit so that her father, Bill, can make a Will.

Bill is suffering from terminal cancer and is in palliative care.

When the solicitor arrives at the hospital, he meets with Bill alone and is satisfied Bill has the mental capacity to make a new Will.

Bill explains to the solicitor that he only has two daughters, Cheryl and Jan, and that he wants Cheryl to “have the lot” because he hasn’t spoken to Jan for 20 years.

The solicitor returns later that afternoon and is still satisfied that Bill has the capacity to execute his will, despite the fact that Bill appears to be rapidly deteriorating.

The solicitor requests that one of the doctors write a letter attesting to Bill’s capacity.

Dr Jo writes a letter on the Hospital’s letterhead that states “I, Dr Jo believe that Bill has capacity to make a Will.”

Unfortunately, Bill dies the next day.

Two months later, Cheryl begins to administer Bill’s estate and Jan contests, alleging that Bill’s last Will is invalid because he did not have testamentary capacity.

Jan adduces alternative medical evidence stating that someone in Bill’s condition at the date the will was signed could not have had capacity.

Cheryl relies on Dr Jo’s letter, which the Court ultimately rules to be inadmissible as it does not explain the basis for her ‘belief’ that Bill had capacity.

Cheryl is unable to adduce any other evidence that Bill had capacity at the time the will was made and Jan’s claim is successful.

Had the solicitor ensured that the letter from the doctor was admissible, the Court may have accepted that Bill had capacity and his Will would have stood.

Thank you to Jamie Visco for his assistance with this column.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor

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