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Do You Have To BeOf Sound Mind To Write a Will-

The son of one of Australia’s wealthiest men has challenged the will of his mother, saying that she was not of sound mind when she wrote her will.

John Kahlbetzer has taken legal action in the NSW Supreme Court seeking a slice of his mother’s estate for his “maintenance and advancement in life”. Mr Kahlbetzer, 49, says a will made by his mother on June 25, 2013 – less than two months before her death – is invalid because she “lacked testamentary capacity”.

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In that will, Virginia Kahlbetzer left much of her estate to the the Garvan Institute of Medical Research. Under NSW law, if someone is proved to have lacked the mental capacity to make a legally binding and valid will, it can be set aside and the next earlier will is used. John Kahlbetzer is seeking that his mother’s 1990 will be declared valid, under which Mr Kahlbetzer is a residual beneficiary, although it is unclear if he shares this status with anyone else.

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Johnny Kahlbetzer in 2005.

Johnny Kahlbetzer in 2005.

Kahlbetzer is the son of German-born agribusiness baron John Dieter Kahlbetzer, whose fortune was estimated by BRW this year at $807 million. He and his younger brother Markus run the family’s extensive Australian agribusiness, property, venture capital and resources operations.

What is Testamentary Capacity?

In Australian law, for someone to execute a valid will, they must:

  • understand the nature and effect of a will: they must understand what a will is and what it is used for
  • know the nature and extent of their property: they must know what assets they own
  • comprehend and appreciate the claims to which they ought to give effect: they must know who they’re leaving their estate to, including who might have a legal claim to their estate
  • are not affected by delusions that influence the disposal of their assets at the time they are making their will: they must not suffer from a disorder of their mind that influences the way they make their will.

If a person is thought to lack the necessary testamentary capacity to make a will, the will is set aside by the court. An earlier will might then be declared valid, or in the absence of a will, the deceased will be declared to have died intestate (or without a will). In this case, the intestacy rules will apply.

The potential for estate battles over whether a person has testamentary capacity to make a will may increase over time as Australia’s population ages.

One of the most common illnesses of old age is dementia.

  • Three in ten people over the age of 85 have dementia
  • An estimated 1.2 million Australians are caring for someone with dementia
  • Dementia is the second leading cause of death in Australia and there is no cure
  • Without a medical breakthrough, the number of people with dementia is expected to be almost 900,000 by 2050

If there are any questions about a person’s capacity to make a will, or if they are vulnerable to being pressured into making a will they would otherwise not make, it is imperative that a specialist in Succession Law is consulted. A specialist is highly trained in dealing with any cognitive decline and will make detailed notes pertaining to the case, which may be necessary in a later court battle.

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