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Testamentary Capacity - Contesting Wills

Tuesday, October 08, 2019

Australians, in general, are growing older.

One of the side effects is that in the last five years, there has been a sharp rise in the incidence of attacks on Wills, based on the argument that the Testator (the person who signed the Will), did not have capacity to make a Will, at the time the document was signed.
There is hot debate even among the legal profession, as to how to deal with this issue.
Essentially, it is a medical issue.
The test for testamentary capacity (do you have enough marbles to make a Will), revolves around the question, “do you have sufficient capacity to understand the nature and effect of the document that you are about to sign?”
This might seem like and easy question to answer and medical assessments are commonly made in this situation.
Unfortunately, up until recently, Lawyers have attempted to make this assessment themselves.
Bennett Carroll was one of the first law firms to create a checklist and a regime to identify people at risk and then institute a medical assessment process to ensure that adequate expert evidence is available, rather than the vague observations and questions of a Lawyer who is not medically trained.
The Bennett Carroll system involves checking, in every case, for the presence of any risk factors that might identify a person whose capacity may be questioned in the future.

These triggers are:

1.     Significant age, that is, 70 years or more;
2.     Any prescription medication;
3.     Any medical operation which has occurred in the last six (6) weeks;
4.     Hospitalisation in the last six (6) weeks;
5.     Any “significant illness”, that is an illness which would have any possibility of affecting someone’s ability to make a decision;
6.     If the client is brought in by a relative in circumstances where there is some suggestion that the client’s capacity is impaired.
This is not about targeting people whose capacity is impaired.  The sole purpose of this process is to obtain evidence to prevent a successful attack, often made many years later where records are lost or recollections have faded.
It is a protection measure, rather than some sort of slight on the testator.
If the evidence is obtained at the time of the signing of the Will, there can be no allegation against the Will on the basis of capacity, which has any prospect of succeeding.
A medical practitioner is asked to indicate in writing an opinion as to whether or not the testator has sufficient capacity to understand the nature and effect of a Will, if one were prepared for them.
This necessitates a test process undertaken by the practitioner, who will then produce a short written report.  This should be all that is required to prevent a successful attack on the Will document.  This simple precaution ensures that the time and for the money spent on an estate plan is not wasted.