When acting for a will maker, practitioners must always be satisfied the client has testamentary capacity. The following claim serves as a reminder of the steps practitioners need to take when preparing wills.
What's on this page?
The facts
Before taking instructions, the practitioner obtained medical advice to the effect that the terminally ill client had testamentary capacity. He arranged to meet with the client five days later to take instructions.
Prior to that meeting, the executors provided him with a letter from a second medical practitioner indicating the client did not have testamentary capacity. Notwithstanding this, the practitioner met with the client in hospital, as arranged, to discuss the draft will he had prepared. The client signed her will 5 days later in the presence of two law clerks employed by the practitioner, because the practitioner was on leave.
The claims
After the client died, the executors disputed the will in favour of a previous will, alleging the client lacked testamentary capacity. When that dispute settled, the executors sued the practitioner for compensation for costs incurred by the deceased estate in defending their claim. They alleged the practitioner failed to ensure the client had testamentary capacity when making her will.
The outcome
The claim settled because there were competing medical opinions and no contemporaneous notes of any questioning of the client to assess testamentary capacity. The settlement was less than the full claim as there were good prospects the court would find practitioner took reasonable steps to satisfy himself that the client had testamentary capacity, but the case was not conclusive.
Despite being on notice that testamentary capacity could be disputed, questions about capacity were not asked. It would have been helpful to have a legal practitioner attend the execution of the will to corroborate the assessment of testamentary capacity.
What should you do?
Understand the existence of testamentary capacity is a legal test.
Use LPLC’s Key Risk Checklist: Testamentary capacity
Where testamentary capacity is an issue, practitioners should also obtain a medical opinion contemporaneous to critical dates such as taking instructions and execution of the will.
In appropriate cases, an updated opinion should be obtained immediately before the will is executed.
If contradictory medical opinions exist, a further opinion should be obtained.
Testamentary capacity issues are particularly important when preparing a will for a client with a terminal illness. Further information can be found in LPLC’s Practice Risk Guide: Weather-proofing wills and estates.
