Muriel is mother to three children, Doug, Jane and Louise. In July 2007, Muriel executed a will in the presence of her lawyer, nurse and neighbor. They noticed nothing was wrong with her. Muriel however was recently released from hospital following a stroke.

The will left Muriel’s half share of her house to Louise, who had already inherited the other half share from her father. Therefore, Doug and Jane got nothing.

Doug and Jane believes that Muriel was not competent when she executed the will in July and/or Louise somehow influenced Muriel’s decision-making. Doug and Jane also believe that the previous will in May 2007 is the only valid will. That will left Doug as the sole executor and left Muriel’s half share to Doug and Jane.


The issues were whether:

  1. Muriel had testamentary capacity when executing the new will;
  2. whether she was unduly influenced by Louise in making the new will.


Testamentary capacity

After assessing the evidence presented by the doctors on Muriel’s condition, the High Court found that Muriel did not lack testamentary capacity at the time she executed her new will. The Court preferred the evidence of the witnesses who were closest in proximity to Muriel when she executed her will. They stated she appeared normal and articulate at the time.

Undue Influence

The High Court found that Louise had not unduly influenced Muriel’s decision-making for the new will. The evidence showed that Muriel had long been concerned to provide for Louise in terms of her occupation of the family home. Another witness in presence said that Muriel was happy to change the will and provide a life interest in favour of Louise.

Family Protection Act 1955, s 4(1) – Moral duty

Although the court found that Muriel knew what she was doing, the court also found that Muriel breached her moral duty to make provision for the maintenance and support of Doug and Jane who are also part of the will. Muriel was not right to favour her daughter and exclude the other children. The Courts recognised that there was a real risk Doug and Jane would not receive any benefit from Muriel’s estate. The provisions made for Muriel’s children were grossly disparate, taking into account financial, moral and ethical considerations.

Disparity was stark in this case and Muriel breached her moral duty she owed to her other loving children.

That being said, it was up to counsel to contemplate how this issue would be resolved.