By Hadyn Ori­ti

One of the growth areas in the law (and one which we con­sid­er to be an unfor­tu­nate devel­op­ment) is the pro­lif­er­a­tion of claims made on an estate.  It seems to be a prod­uct of longevi­ty and the ail­ments that accom­pa­ny old age.

The peri­od fol­low­ing the death of a loved one should be a time of griev­ing and cel­e­bra­tion of their life.  How­ev­er, once that time ends, thoughts may turn to more pro­sa­ic mat­ters such as “what’s in the will for me?”

Gen­er­al­ly, there are two types of claims made in respect of a person’s estate.  They are that the claimant was not ade­quate­ly pro­vid­ed for or that the will-mak­er did not have the req­ui­site capac­i­ty to make the will.

This arti­cle does not con­sid­er that ques­tions of inad­e­quate pro­vi­sion.  Rather, we dis­cuss what is known as “tes­ta­men­tary capac­i­ty”. Now, if a per­son did not have capac­i­ty to make a will one of two things will hap­pen; either an ear­li­er Will which favoured the per­son mak­ing the claim is res­ur­rect­ed, or there is an intes­ta­cy because they had not made a pri­or will.  The per­son bring­ing the claim will see that it is to their ben­e­fit that one of those occurs.  So, let’s be clear, these claims are always about mon­ey.

Over the cen­turies, the rule for tes­ta­men­tary capac­i­ty has been that a per­son mak­ing a Will must:

  1. have the capac­i­ty to under­stand the nature of the act of mak­ing a Will and its effect;
  2. under­stand the prop­er­ty which they will dis­trib­ute by their Will; and
  3. under­stand and com­pre­hend the moral claims of poten­tial ben­e­fi­cia­ries.

Fur­ther, they must not be suf­fer­ing from some con­di­tion that inter­feres with their nor­mal deci­sion-mak­ing.  The issue for us in this time is that as more of us are liv­ing longer, we are fre­quent­ly devel­op­ing the med­ical con­di­tions of the aged that affect cog­ni­tion and mem­o­ry.  Too many of us suf­fer from demen­tia, Alzheimer’s dis­ease or oth­er ail­ments that affect our abil­i­ty to think.

Whilst par­ties may have been diag­nosed with med­ical con­di­tions that affect their men­tal capac­i­ty, a med­ical diag­no­sis of such con­di­tions is not nec­es­sar­i­ly con­clu­sive of a person’s tes­ta­men­tary capac­i­ty.  The author­i­ties are quite clear — a per­son may be diag­nosed with demen­tia, for exam­ple, but still retain tes­ta­men­tary capac­i­ty.  The issue is a legal test not a med­ical one.

It is up to the lawyer tak­ing instruc­tions to deter­mine whether their client has capac­i­ty.  If the lawyer is sat­is­fied that they do, then they are oblig­ed to pre­pare a Will, espe­cial­ly if the client is rel­a­tive­ly coher­ent, because a fail­ure to do so could leave them exposed to a lia­bil­i­ty to dis­ap­point­ed ben­e­fi­cia­ries.

An order of a Tri­bunal under Guardian­ship leg­is­la­tion that some­one is not capa­ble of man­ag­ing their affairs is also not con­clu­sive evi­dence that a per­son lacks tes­ta­men­tary capac­i­ty at that point in time.  So the fact that a per­son may be under a Finan­cial Man­age­ment Order does not nec­es­sar­i­ly pre­clude them from mak­ing a Will.

Whilst med­ical evi­dence is of assis­tance to the Court in deter­min­ing the con­text in which a Will may be made, if there is a dis­pute as to capac­i­ty, then it is up to the Court to decide whether the Will is a valid doc­u­ment.

To that extent, the evi­dence of the lawyer tak­ing instruc­tions becomes crit­i­cal.

This firm has decades of expe­ri­ence in such mat­ters act­ing for many Will mak­ers and execu­tors defend­ing claims by par­ties seek­ing to impugn a Will.

Should you require any fur­ther infor­ma­tion, please con­tact Hadyn Ori­ti on (02) 6583 0449 or horiti@dohlaw.com.au.

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