This case involved a dispute over two wills made by Mark Boatwright, who died in May 2021. Boatwright made a will in January 2018 appointing the plaintiff John Bratt as executor. In September 2020, Boatwright made another will appointing the defendant Oliver as executor. After Boatwright’s death, Oliver applied for probate of the 2020 will. Bratt objected and commenced proceedings to prove the 2018 will, alleging Boatwright lacked testamentary capacity when making the 2020 will.
The parties reached a compromise asking the court to pronounce for the 2018 will. The court examined the evidence regarding Boatwright’s testamentary capacity for each will. There was no suspicion about capacity for the 2018 will, which was prepared by an experienced solicitor who had no concerns.
However, evidence regarding Boatwright’s long-term alcohol abuse and escalating drinking after receiving an inheritance in 2019 raised suspicions about his capacity when making the 2020 will. Witnesses recounted Boatwright’s deteriorating physical and mental condition. Boatwright appeared to have formed a mistaken belief that Bratt was responsible for taking away Boatwright’s driver’s license and car. This led to Boatwright expressing animosity toward Bratt and removing Bratt and his wife as beneficiaries under the 2020 will.
The court was not satisfied Boatwright lacked capacity for the 2020 will. However, the evidence did incite suspicion, reversing the onus of proof. As no party sought to prove Boatwright’s capacity for the 2020 will, the court pronounced for the validity of the 2018 will.
Justice Pearce: To me, the evidence just referred to, combined with other evidence about the level of the testator’s alcohol intake and the damage it was doing to his health and the effect it had on his behaviour, supports the inference that whilst, at the time the 2020 will was made, the testator may have presented an appearance of reason and rationality to some, his mind was no longer free to act in a “natural, regular, and ordinary manner” or properly weigh the potential claims which may press on him concerning his estate. The evidence suggests that the aversion he developed to his sister and brother in law, which led him to alter his will, was unreasoned and unfounded. As has already been explained, because of the suspicions I find to be raised by the evidence about the testator’s capacity, the onus would be on any party asserting the validity of the 2020 will to remove the suspicion by proving affirmatively that the testator had testamentary capacity at the time it was made. In light of the compromise, no party seeks to prove the testator’s capacity. In the absence of such proof I could only pronounce for the validity of the 2018 will. In all of the circumstances, I have concluded that it is the course I should adopt.