Frizzo v Frizzo

The appeal was brought by two of the testatrix's children against the executors of her estate, who were also her children, following a ruling by the Supreme Court of New South Wales. The testatrix had executed a will in 2003 which left property to certain children and the residue to the first appellant. In 2006, prior to undergoing hip replacement surgery, she dictated a will to her doctors which purported to change the 2003 will and divide the estate equally between her five children. The appellants contested the validity of the 2006 will, claiming that the testatrix lacked testamentary capacity at the time of its execution.

The court was required to determine whether the testatrix had testamentary capacity at the time of making the 2006 will. The testatrix's capacity to make a will was assessed by considering whether she was aware, at least in general terms, of the nature and extent of her assets, and whether she understood the effect of the 2006 will. The court also considered whether there was evidence of the testatrix being confused and agitated in the days prior to her surgery, which could have impacted her testamentary capacity.

The court found that the testatrix had testamentary capacity at the time of making the 2006 will. The court accepted the evidence of the testatrix's doctor that she was not suffering from delirium at the time of making the will, and that she was aware of the nature and extent of her assets. The court found that the testatrix understood the effect of the 2006 will and that it was validly made.

The appeal was dismissed with costs.