Testamentary Capacity Case and Implications for Practice

The issue

The recent case of Kozak v Berwicki [2008] NSWSC 39 considered whether a grant of probate should be revoked on the grounds that the testator lacked testamentary capacity.

The case

Probate of a Will dated 4 July 2004 (the Will) was granted in common form (ie. open to a later challenge in court) to the defendants following the testator's death on 3 August 2004. This Will had different executors and beneficiaries to the Will signed by the testator eighteen months earlier on 2 December 2002 (the prior Will). The plaintiff sought two things:

  • revocation of the grant of probate on the grounds that the testator lacked capacity at the time the Will was made; and
  • a grant of probate in solemn form of the prior Will.

The principal witness for the plaintiff was a consultant psychiatrist. She had never met the deceased but had studied the affidavit evidence and hospital records of the deceased. It was argued that the testator suffered from an insane delusion regarding the executor and beneficiaries of the prior Will which resulted in him signing the last Will with new executors and beneficiaries.

The principal witness for the defendants was a neuropsychologist who saw the testator on six separate occasions. The neuropsychologist's report from 2003 said:

"Mr Kozak demonstrates what appears to be a decline in overall cognitive functioning. These results however, do not meet the criteria for a dementing condition and at this stage there is no clear evidence of a neurodegenerative process."

In finding that there was sound reason for the deceased to make the Will the way he did, Windeyer J stated that it was understandable for the deceased to believe what he did believe. The accuracy of what the deceased believed was not an issue. The deceased was justified in signing a new Will for the benefit of the defendants.

Practice Points

1. Probate incorrectly granted by the Supreme Court

Due to an administrative error, a general caveat lodged by the plaintiff was not cross-referenced to the summons for probate lodged by the defendants. Therefore, probate was incorrectly granted to the defendant.

The Court said such an error can be corrected. The Probate Registrar could have requested the defendants to return the probate for cancellation or if the defendants refused, the Probate Registrar could have sought a motion seeking revocation. Neither was done in this instance and the solicitor for the plaintiff was incorrectly told by the Probate office to file a statement of claim for revocation.

2. Procedure in a claim for revocation of a will

The proper procedure in a claim for revocation is for the executor of the disputed will to seek probate of that will in solemn form by cross-claim. Adopting such a procedure will ensure through the service of citations that all interested parties are bound.

3. Expert evidence

Windeyer J qualified some remarks made by him in previous cases. He stated that the evidence of well qualified psychiatrists and geriatricians who have never seen the deceased may still be of assistance in capacity cases, especially in delusion type cases. However, it is ultimately for the court and not the medical expert to decide if a person was under a delusion which resulted in a lack of testamentary capacity.

4. Liability for costs

The deceased was not the cause of litigation but the plaintiff was justified in questioning the deceased's testamentary capacity. The plaintiff was not entitled to costs from the estate. The plaintiff had to bear their own costs and the defendants' costs were borne by the estate rather than by the plaintiff.


The ability to prove or disprove testamentary capacity will continue to be a contentious area in estate litigation. In some delusion type cases, expert medical evidence may assist. In other cases, the evidence of lay witnesses, the general practitioner, and the solicitor who drafted the Will, may carry more weight than that of medical experts who never examined the deceased.

Authors: Gerard Basha & Philip Davis