Do I Really Understand? Testamentary Capacity and Solicitors’ Duties

By 1 June 2018Family Law
testamentary capacity

How do you or your family assess the testator’s capacity when drafting a will?

In the will-making process, a solicitor must confirm the cognitive capacity of a client prior to entwining in arrangements for disposing property upon death.

The solicitor is required to confine the drafting of the will to the testator’s instructed wishes.

Solicitors have a duty at all times to assess the cognitive capacity of their clients during the process of legal action. This matter particularly manifests in solicitors’ duty to assess the testamentary capacity of a client who instructs the solicitor to draft his or her will.

The issue of testamentary capacity is regularly challenged in estate matters. The role of solicitor in assessing the mental capacity of the client at the time of the will and the procedure taken by the solicitor to ascertain the capacity are extremely crucial and may be game-changing in estate litigation matters.

What follows is an overview of some of the safety issues you’re your solicitor should consider when taking your instructions.

What are the signs of Mental Incapacity?

It is often very complicated for a solicitor to determine whether a person’s judgment or understanding is impaired.

Whilst factors such as age, irrationality, inability to reflect and remember, mental disabilities such as dementia, severe depression and inconsistent instructions from the client may be a sign of incapacity, they are not considered a definite verdict as to the incapacity of the client.

An expert report, i.e. a medical practitioner’s opinion may assist the solicitor’s determination of the client’s testamentary capacity.

Testator’s Knowledge and Approval of the Will

Lack of testamentary capacity is not the only part of the mental capability of the testator that can be challenged. The Court also considers whether the testator knew and approved the will, particularly the parts which favour one beneficiary substantially more than another.

In Hobhouse v McArthur-Onslow [2016] NSWSC 1831, the first will of the testatrix equally divided her estate between her son and daughter whilst the last will of the testatrix which was drafted in circumstances that there was indication of the testatrix’s cognitive incapacity, substantially favoured the son.

It was held that the testatrix had capacity to make her last will, largely due to the evidence of the testatrix’s treating specialist. However the last will did not reflect the testatrix’s last wishes since it treated the son and daughter differently.

It was further held that a high degree of animosity between the son and the daughter meant that it would have been irrational for the testatrix to believe that her son would look after her daughter.

Accordingly the Court severed those portions of the last will that gave greater power to the son and granted probate for the remainder of the will.

The decision also makes adverse comments in relation to the solicitor who drafted the last will. Some of the criticism noted in this decision include:

  1. The testatrix was not given a draft copy of the will in advance of her meeting with the solicitor to consider the will carefully and at her leisure;
  2. The testatrix was not asked any open-ended questions;
  3. The solicitor did not keep any file notes of the meeting with client. This is particularly important in circumstances that the courts give substantial weight to the evidence of an experienced solicitor as opposed to the reconstruction of the events by the solicitor;
  4. Upon being put on notice that the testatrix was suffering from dementia and being treated accordingly, the solicitor did not take the precautionary steps in that respect;
  5. The will did not reflect the testatrix’s instructions to the solicitor;
  6. The solicitor did not provide adequate advice to the testatrix in respect of the possibility of the executors renouncing (which actually occurred in this case);
  7. There was no proper advice in relation to the executors power to distribute the income from the estate assets; and
  8. There was a lengthy delay in preparation of the will (in this case there was an eight month delay).

Generally solicitors’ duties in drafting a will for a client encompasses preparing the will and ensuring that the will gives effect to the testator’s instructions, covers all the estate of the testator, and that the will is properly executed and witnessed.

However to avoid challenge of the will, it is important the solicitor consider and assess the testator’s capacity and ascertain that the testator understands and approves the will drafted for him or her.

Accordingly it is crucial during the estate planning process to consider the instructions of the testator properly, assess their testamentary capacity and provide adequate advice.

Our Services

Will & Estate Planning Lawyers Sydney at Pavuk Legal can assist you with a full range of legal services in respect to your Estate Planning needs and drafting your will. With the right tools and processes, your Estate Planning desires can be implemented accordingly for both you and your intended beneficiaries, and to avoid problems of challenging a will due to incapacity or failure to provide for a potential beneficiary.

Pavuk Legal also provides services in respect of setting aside a deceased’s will on the basis of:

  • A family provision claim;
  • Lack of testamentary capacity;
  • Forgery;
  • Undue influence;
  • Whether the testator has knowledge and otherwise approves the contents of his or her will;
  • Whether the testator had a history of signing documents without reviewing them;
  • Whether the last will of the testator deferred significantly from his previous wills;
  • Whether the testator was unclear about the ownership of his estate;
  • Whether the last will departed ‘radically’ from previous wills; or
  • Whether the description of the estate in the will is inconsistent with any other documents previously prepared by the testator.

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