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  • It is a grave matter to displace testamentary freedom.
  • A false belief is not sufficient (without more) to prove testamentary incapacity, even if it is material to making a will.
  • To establish incapacity, a false belief must be a ‘delusion’ and must also have an element of unyielding irrationality such that an inference can be drawn that the testator would have adhered to the delusion regardless of evidence demonstrating its falsity.

A recent judgment of the Court of Appeal in Carr v Homersham [2018] NSWCA 65 delivers a valuable, contemporary analysis of the scope of ‘mental incapacity and
‘insane delusion’ in the context of estates law.


Ms Hordern died in 2014 aged 86. In 2001, she executed a will, leaving her estate to her niece (‘First Will’). In 2004, she revoked the First Will and executed a second will, leaving her estate to Ms Carr, a friend and carer (‘2004 Will’).

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