Will set aside due to undue influence and lack of testamentary capacity

September, 2013

The recent Supreme Court of NSW decision in the case of Dickman v Holley, Re; Estate of Simpson1 demonstrates the Court’s willingness to set aside a will on the grounds of undue influence and lack of testamentary capacity, some years after probate has been granted.

We look at the issues in the case relating to will making and probate, and highlight several key messages to take from this case.


Mrs Simpson (deceased) made a will, leaving the whole of her estate to the Salvation Army (charity) for the use and benefit of the nursing home she lived in prior to her death (second will). The lawyer who created the will was also the lawyer for the charity, and the deceased appointed someone from the charity as her executor. Probate was granted and the estate was paid to the charity.

Four years later, Mr Dickman, a close friend of the deceased’s, sought for that probate to be revoked. Mr Dickman was the executor and sole beneficiary of the deceased’s earlier will (first will). Mr Dickman also sought probate to be granted to him in respect of the first will.

Mr Dickman claimed that the deceased lacked testamentary capacity when the second will was made, and that the second will was made through the undue influence of the deceased’s neighbours and also the charity’s officers. These claims were based on the deceased’s age and health, and events involving the deceased’s neighbours and the charity’s officers.

Court’s Decision

The Court held that the charity should reimburse the deceased’s estate.
There was a question as to whether Mr Dickman’s claim to revoke the grant of probate of the first will was barred because he did not commence proceedings until four years after probate was granted. The Court concluded that the claim was not barred.

The Court said that the second will should be revoked on the basis that the deceased lacked testamentary capacity. It was considered that as a result of the deceased’s extreme age (96 years), physical weaknesses and emotional liability, the deceased would not have been capable of standing up to the pressure imposed by others and evaluating the strength of the claims being made about her estate.

Key Messages

There are several key messages to take away from this case:


1 Dickman v Holley [2013] NSWSC 18

Contact Mills Oakley

For more information, please contact:


Vera Visevic | Partner
T: +61 2 8289 5812
E: vvisevic@millsoakley.com.au

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