Key Risk Checklist: Testamentary capacity

14 July, 2014
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Testamentary capacity

 Take comprehensive instructions from the will maker in person, on their own.

 Be ever mindful of the issue of capacity and satisfy yourself that the will maker meets the various elements of the test, that is, the will maker must[1]:

  • Be aware of and appreciate the significance of the act which she is embarking upon.
  • Be aware in general terms of the character, extent, and value of the estate with which she is dealing.
  • Be aware of those who might reasonably be thought to have claims upon her bounty, and the basis for and nature of those claims.
  • Have the ability to evaluate and discriminate between the respective strengths of those claims

 Keep detailed file notes of the:

  • Instructions given by the will maker and the reasons for them.
  • The explanation given by you before the will maker signed the Will e.g. whether you read each clause out to the will maker and they asked questions or the will maker read the Will him or herself.
  • What enquiries you made of the will maker to satisfy yourself that the will maker had capacity

 If you are in any doubt about capacity, the will maker should be asked to obtain a medical opinion.

 If the client is over a certain age (you should choose an age you think is appropriate) and the proposed Will is in any way controversial, have a firm policy that medical opinions are always obtained in order to protect the Will from later possible challenge.

 When you are seeking a medical opinion from a doctor, provide the doctor with a letter:

  • Giving the doctor the client’s relevant background and history including personal circumstances, financial circumstances and any relevant legal proceedings on foot.
  • Giving the doctor relevant details of the legal test required
  • Asking the doctor to give an opinion on:
    • whether the client is suffering any condition that may affect cognition and if so, what it is; and
    • whether in the doctor’s opinion the extent of the cognitive impairment is such that the client could not:
    • be aware of the nature and effect of making a Will;
    • be aware of the nature and extent of their assets;
    • assess who are the people who are natural beneficiaries, such as family and personal friends;
    • understand their obligations to provide for people who are dependent on them;
    • discriminate between the strengths of the claims of potential beneficiaries;
    • understand the consequences of their decisions about who they include.

[1] Foster & Ors v Meller & Anor [2008] VSC 350, Norris v Tuppen [1999] VSC 228