Follow the Golden Rule

VEALL v VEALL [2015] VSCA 60

Finding as to the existence of testamentary capacity overturned. The last exposition on capacity by the VSCA was over 10 years ago in Kantor & Anor v Vosahlo [2004] VSCA 235 (‘Kantor’).


This was an appeal from a judgement of the trial judge that the last will of the deceased not be admitted to probate because the testator did not know or approve of its contents but otherwise had testamentary capacity. By a notice of contention the appellant sought that the orders dismissing the proceeding be affirmed and contended that the trial judge erred in finding that the testator had testamentary capacity. The Court of Appeal dismissed the appeal and otherwise found that the testator had testamentary capacity making it unnecessary to determine whether knowledge and approval of the will was affirmatively established. The decision on knowledge and approval of the will and the important contemporary guidance on the standards of solicitors in will execution is dealt with in another case note (Part 2).


The deceased had two children by the first marriage and one by his second. During his life his second wife and third child were well placed to receive the bulk of his wealth by reason of inter vivos trusts. His eldest child tried to correct this asymmetry in the distribution of the father’s wealth, historical and prospective, including a family court proceeding against the deceased’s wife even though she and the deceased were still living together harmoniously. There was evidence that the deceased wished his children to benefit equally from his wealth. There were several wills made before the final one in 2010.

The last will “departed significantly from the previous wills”[1] and these departures were an important basis for the conclusion that the deceased did not approve or know of the contents but also informed the finding on capacity. The last will completely excluded the deceased’s third child and, among other things, bequeathed significant assets from a trust which had been sold three years previously.

Medical evidence as to the testator’s various disabilities was significant but stood in sharp contrast to evidence of the testator’s friends, carers and lawyers. The deceased was 90 years old, had a failing memory and was diagnosed by least one doctor with the signs of dementia. The trial judge held the medical evidence demonstrated “significant cognitive impairment”.[2] The lawyers who gave evidence that the deceased had capacity to give instructions and by extension had capacity included three solicitors and two members of counsel.

Court of Appeal

The Court of Appeal noted that certain factual findings by the trial judge were properly open to him to make but concluded that he erred in finding capacity. The trial judge found the evidence of eight independent witnesses in respect of the existence of capacity of the testator to be compelling. As to this evidence Santamaria JA reasoned:

“..despite its independence, it should not have been treated as decisive..

The Court of Appeal concluded that the testator’s “..confusion at the time meant that he had lost the ability to evaluate and discriminate between the respective strengths..”[3] of the claims on the estate. Also that the testator lacked the “..stamina necessary to evaluate those who had claims upon his bounty and thus capacity to make any rational determination..”[4].

The Court of Appeal gave weight to the contradictory nature of what the testator was saying to one side of his family as opposed to another. He appeared to be in agreement with everything his son wanted including a Family Court property settlement to unlock large sums of money held in a trust. On the other hand his Family Court affidavit in which he deposed to his marriage being “over” entirely contradicted the fact that his wife was showering and dressing him each morning and dining with him each evening.

The Court of Appeal did not find it necessary to delineate particular diagnostic matters of importance in the medical evidence holding that “the greater part of the evidence relates to circumstances that were said to have meant that ‘suspicious circumstances’ surrounded the making of the will”[5]. Rather it discounted the weight given to the non-medical evidence for capacity, in particular that of the lawyers and thereby re-prioritised the medical evidence. The evidence of the lawyers was discounted on the basis that the medical evidence of the testator’s condition was “probably not communicated to them”[6] despite recognition of authority to the effect that the contemporary evidence of the lawyers as to capacity is normally given significant weight.[7] The Court of Appeal noted that it had “more evidence than was ever available to them” (the lawyers). Ultimately Santamaria JA reasoned: “The test for testamentary capacity is, with respect, more exacting than that applied by the trial judge”.[8] The testator’s incapacity to address the task of adjusting bequests to reflect past and future distributions[9] was ultimately decisive on the capacity question.


The difficult question for lawyers faced with allegations of lack of testamentary capacity is the quality of evidence necessary to establish ‘doubt’[10] as to capacity and thereby shift the onus of proof back to the propounder of the will and ultimately the point at which capacity is on balance found to be absent. In other words: Is the bar high or low?

Five lawyers who gave evidence that the deceased was capable of giving instructions and by inference had capacity were held, in essence, to be wrong.

The decision is a useful guide to:

  • how non-medical evidence can be adduced to establish a lack of capacity;
  • the circumstances in which a lawyer’s opinion as to capacity will be given decisive weight in the absence of observance of the golden rule of a medical witness verifying capacity.[11];

How medical evidence can be preferred over that of lay witnesses even though the latter had extensive interaction with a testator.

[1] At [4]

[2] At [260] VSC 2014 at [38]

[3] St [203]

[4] At [209]

[5] At [5]

[6] At [210]

[7] “This is powerful evidence which cannot be lightly disregarded” at [210] and also at [192] citing Harls v Burgess

[8] At [211]

[9] At [203]

[10] Through suspicious circumstances or otherwise see decision at [168], [193]

[11] Referring at [192] to Templeman J’s judgements including Re Simpson (1977) 121 SJ 224

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