Docking v Schwarzkopf

In Docking v Schwarzkopf, the court considered whether a 1989 will or a 2007 will should be admitted to probate. The deceased, Albert Theodore Docking, made a will in 1989, which appointed the plaintiff, Graeme John Docking, as the sole executor and made specific bequests to him and his brother, Ralph William Docking. The residue of the estate was to be shared equally between the plaintiff and Mark James Packer. In 2007, the deceased executed a new will revoking all former wills and testamentary dispositions, and appointing the defendant, Michael Bjorn Schwarzkopf, as the sole executor, with the residue of the estate to go to the defendant or his daughter if the defendant predeceased the deceased. The plaintiff lodged a caveat to prevent the sealing of a grant of probate over the deceased’s estate without notice to him. The plaintiff sought to have the 1989 will admitted to probate and to have the 2007 will declared invalid on the basis that the deceased lacked testamentary capacity when he made and executed the 2007 will.

The court had to decide whether the deceased had testamentary capacity when he executed the 2007 will. The court noted that the 2007 will appeared to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA). However, the court was satisfied that there were circumstances to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. The evidence of the plaintiff established that the deceased was suffering from periods of confusion from 2006, such that he was deluded into thinking that the plaintiff was trying to take his money. By 2007, the deceased's thinking was so disordered that he informed the plaintiff that he had changed his will to leave his entire estate to a non-existent granddaughter. The evidence of Dr Field established that by June 2007 the deceased was suffering from a vascular dementia that deprived him of the capacity to understand properly the nature and extent of a will and the persons who might have a legitimate claim on his estate. The court accepted Dr Field’s opinion that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow at the time of the execution of the 2007 will.

The court made orders pronouncing in favour of the force and validity of the deceased’s will dated 27 April 1989 and against the document dated 19 June 2007. The court concluded that the plaintiff had the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time. The court was satisfied that there were circumstances to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. The court accepted Dr Field’s opinion that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow at the time of the execution of the 2007 will.