Article by Manny Wood published in the Coffs Coast News Of The Area on 21 July 2023.
Henry is in his 70’s and has been recently diagnosed as suffering from the early onset of vascular dementia.
Henry sees a solicitor about making a will. The solicitor explains to Henry that the diagnosis does not necessarily mean that he does not have the capacity to make a valid will.
The legal test involves establishing that Henry possesses “testamentary capacity” and Henry’s “knowledge and approval” of the will.
There is a presumption of testamentary capacity if the will is “regular on its face” and is duly executed but this presumption can be displaced if there is evidence that raises suspicion that the will-maker lacked the requisite capacity.
The solicitor should be satisfied that Henry is aware of the significance of making a will; that he is generally aware of the nature, extent and value of his estate; that he can identify the people who have a right to receive provision from his estate and has the ability to evaluate the strengths of any potential claims by these people.
The solicitor is aware that mental capacity can fluctuate over time, that capacity is “task specific” and that the complexity of the will is also relevant. This means that even if a person has been found to be incapable of managing their financial affairs, they still may be capable of making a will.
On notice of Henry’s diagnosis, the solicitor carefully documents the consultation. The solicitor avoids using leading questions and questions that can be answered with simple, yes or no answers. The process involves the solicitor preparing a family tree which identifies Henry’s immediate relatives and a list of Henry’s assets and their approximate values. The solicitor is mindful of retaining and preserving the file notes.
Satisfied as to Henry’s capacity, the solicitor takes Henry’s instructions and prepares his will. As a precaution, a medical report is obtained, specifically addressing the proposed will before it is executed.
Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487. This column is only accurate at today’s date and is not legal advice.
