Are your parents too old to make a new will?

The issue of testamentary capacity is an issue that we find, we must deal with more regularly, as the population and  our clients, reach a mature age.  In recent times we also find that children and dependants are far more likely to challenge a will, if there is some significant advantage in doing so.

If the will of your parent is challenged what would happen?  In legal proceedings the court does not know the true factual situation, what matters is what you can prove.If required, what evidence could you produce that your elderly parent had capacity.  This may not be as simple as it at first appears.  In these kinds of matters there is often contradictory evidence.

Consider what might happen if a will is challenged:

1. If the executor has not obtained a grant of probate (and the will is invalid) then the executor will be personally responsible for any loss and damage flowing from administration of the estate under an invalid will.  This could be catastrophic for the executor.  Even if the will is found to be valid the estate may have costs associated with a claim, costs which could have been avoided if, steps were taken at the time of will making, to record independent evidence of capacity.

2. If the executor applies for probate and there is doubt about capacity then significant legal costs may be incurred which the estate or an executor may need to pay.  It may be difficult to determine if in fact there was capacity.  This is particularly so if the will is challenged and there is no independent record of the testator’s cognitive state.

3. It is usually the case that a beneficiary or potential beneficiary making a claim is a person that will benefit significantly from a will being set aside as invalid.  It is worthwhile then to consider at the time of making the will, if someone may benefit from a claim that the testator did not have capacity.  Estranged children, wayward children, and Dependants who believe that they have not received an adequate share will sometimes make a claims.  Might anyone feel this way?

4. Who was present when the will was made and is there the possibility that an allegation may be made that someone applied pressure upon the testator.  Although a beneficiary may need to assist an elderly parent who wants to make a will there is a risk in becoming too closely involved, particularly if a legal practitioner has not been retained.

The test for capacity is set out in a case decided in 1870, which is still referred to today.  Banks V Goodfellow sets out the following test to determine capacity:

1. Does the testator understand the nature of the act (of making a will) and its effect

2. Is the testator aware of the extend of the assets which will pass pursuant to the will?

3. Does the testator appreciate the claims to which he or she ought give consideration and effect?

This test highlights the danger of preparing a will without legal assistance. Particularly in the case of anyone over 65 years of age.  It is not so much the need to prepare the will properly but the need to independently record the mental state of the testator, and the circumstances at the time of execution of the will, as determined by a legally qualified person, which should drive this decision.

Regardless of the true situation of a testator’s mental health, at the time of execution of the will, it is all too easy after the testator has passed, to make allegations about the testator’s mental state, and other circumstances. The only way to rebut these allegation is the lawyers file notes and independent assessment.

It is interesting to note that the test of capacity as set out in Banks V Goodfellow will not be satisfied by a purely medical test as it requires an assessment of the nature and complexity of the will intended.

It should be noted that a person with some diminished capacity may still be capable of making a will particularly if the will is simple.  A more complex will or a will with more complex consequences may not be made by a person with the same diminished capacity as the first.

When there are questions of capacity it is also wise to involve medical staff or the family doctor to offer an overall assessment of the clients cognitive capacity.

Riba Business Lawyers

Strength Through Knowledge

Franchising, Leasing, Acquisitions

Head office:  34 Duporth Avenue, Maroochydore, Sunshine Coast, Queensland.

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