Hookway v Hookway

The Full Court of the Supreme Court of Tasmania considered an appeal concerning the validity of a will. The dispute involved the testamentary capacity of the deceased, Mr. Hookway, at the time he gave instructions for his will. The primary issue was whether Mr. Hookway possessed the requisite "soundness of mind, memory and understanding" at the moment he instructed his solicitor, notwithstanding a subsequent decline in his mental state before the will was formally executed.

The court was required to determine the critical date for assessing testamentary capacity. Specifically, it had to decide whether capacity should be assessed at the time the deceased gave instructions for the will, or at the time the will was signed, particularly where there was a significant gap between these events and the instructions were not immediately acted upon by the solicitor.

The Full Court held that the crucial time for assessing testamentary capacity is when the deceased gives instructions for the will, provided those instructions are subsequently followed and embodied in the will. The court reasoned that the testator's mind must be sound at the time they form the intention to make a will and communicate that intention. While the solicitor's delay in preparing the will was noted, it did not alter the fundamental principle that capacity is assessed at the time of instruction. The court applied the established legal principles regarding testamentary capacity, emphasizing that the testator must understand the nature of the act of making a will and its effect, the extent of their property, and the claims of those who might expect to benefit.

The appeal was allowed, and the grant of probate was refused.