Warwick Croft died in January 2016, aged 85. He had six daughters. His wife June died three years before him.
They had separate wills and there was a dispute over Warwick Croft’s will, which focused on his mental capacity at the time he made the will.
With people living longer and dementia affecting close to 25 per cent of people over 85, legal commentators expect to see a lot more cases of this kind.
In a note to clients on the case, Cordato Partners principal lawyer Anthony Cordato says we should expect to see more wills challenged on the basis of dementia.
Cordato says: “According to the OECD Health Policy Studies, 28.8 per cent of people aged 85 years or older have dementia. It follows that one-quarter of 85 year old testators may not have sufficient testamentary capacity to make a new will.”
The Crofts made unusual arrangements in their wills. June Croft’s estate was worth $1.9 million. She left shares in a private company to five of her daughters, but not to her daughter Anna. The residue of the estate was shared equally among the six daughters.
Warwick Croft left an estate worth $3.2 million. He gave $40,000 to each of five daughters and gave Anna the balance.
His will said: “I have made the provision for my daughter Anna Sanders having regard to her commitment to maintain and continue to operate the business know as Cohoe Marine Products [the private company mentioned above] and also her support for me over many years.”
In 2012, June had a fall. When she left the hospital she went to live with her daughter Leah. According to the court, Leah, who “was long resentful of her father, intervened to shepherd her mother and take control of her own finances.”
June engaged solicitors for dissolution of the marriage and the division of matrimonial property and severed the joint tenancies on their two Sydney properties. That is when they made separate wills.
Anna, who was close to her father, managed the family business, Cohoe Marine Products. Anna and her husband were executors of Warwick’s will and when he died they applied for probate.
Leah and another sister Esther Croft contested the validity of the will, arguing that Warwick lacked testamentary capacity because of cognitive impairment. The other three sisters stayed out of the dispute.
The law says that to exercise the power of a will a testator must understand the nature of the act and its effects.
Warwick Croft had contracted a lung disease and since about 2010 had it treated with a corticosteroid. One side effect of the drug was that he had hallucinations.
In 2013 Croft had several examinations to assess whether he had any cognitive impairment. Examinations in March and April found there was “no significant underlying cognitive impairment” but he did suffer from hallucinations.
However, in November a psychiatrist reported that he had “mild cognitive impairment”, which required further assessment.
The dispute over the will went to the New South Wales Supreme Court, where the daughters gave evidence that their father had suffered from hallucinations or delusions since 2010.
The primary judge found that the evidence about Warwick Croft’s mental capacity was inconclusive. The Court of Appeal upheld this finding.
The Court of Appeal ruled: “The medical evidence does not establish that Mr Croft’s underlying cognitive impairment was such as to deprive him of the ability to weight claims on his testamentary bounty.”
The court also accepted evidence from Croft’s solicitor that in preparing his will there was a “proper discussion of Croft’s testamentary intention.”
It found that his decision to leave the bulk of his estate to Anna was “rationally responsive to personal experience of family, yet not biased to the extent of excluding the less favoured daughters.”