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Elder Law

testamentary capacity

How Do I Know if My Parent has Testamentary Capacity to Update their Will?

By | Elder Law, Wills & Estates

Learning that your parent wants to update their will can be a source of consternation and concern. This can be especially upsetting if you find out that your mother or father now wants to exclude you. Maybe you are concerned that your parent wants to change their will because they’re under duress. Perhaps they’ve had a stroke, or they were recently diagnosed with Alzheimer’s Disease. In any case, it begs a question: How do you know if your parent has Testamentary capacity to update their will?

The four-pronged test used to determine Testamentary capacity

In general, lawyers use a four-pronged test to determine whether someone is capable of making or changing a will. Specifically, the lawyer must determine whether the person wishing to make or update a will:

  1. Fully comprehends what they want to do (make or update a will) and the ramifications of doing so.
  2. Is aware of certain details regarding the ‘property’ they are distributing through the will (such as the type of property and how much of it is being allocated).
  3. Has a solid understanding of who he/she should make provisions for in the will, and why.
  4. Is of ‘sound mind’, meaning that he or she is not suffering from mental illness or any other medical/psychological condition that could impair his or her decision-making.

What happens if the lawyer can’t reach a conclusion about your mother or father’s testamentary capacity based on conversations with your parent and observing his/her behaviour? In this case, the lawyer will request a report from your parent’s doctor. Depending on your mother or father’s circumstances, this may be a general practitioner or a physician specialising in geriatric practice. The lawyer will then make a decision regarding your parent’s ability to make or change his or her will.

An interesting bit of legal history

As legal professionals and historians know, the precedent for the four-pronged test detailed above dates to the 19th Century. More specifically, it dates to an Old English case from 1870, called Banks v Goodfellow (1870) 5 QB 549.

In that particular case, the validity of the will was challenged after the person who made it passed away. The question was whether the person who made the will was capable of doing so. This question arose because the will-maker was experiencing delusions before his death. Specifically, he thought his butcher was trying to kill him, even though this butcher had been dead for more than a decade.

To reach a decision, the court in Banks first created the following criteria as a basis for testamentary capacity. Accordingly, someone was legally capable of making a will if:

  1. the person making the will understands what it does;
  2. they are aware of the type and how much property they have;
  3. they are aware of who they should make provisions in the will for and why;
  4. such people receive proper consideration;
  5. the person has not or is not experiencing delusions about anyone who would reasonably expect to benefit from the will.

Ultimately the court in Banks decided that the person who made the will was capable of doing so. Its reasoning was that the delusions weren’t relevant because the will-maker was having them about someone who wouldn’t have ordinarily benefited from the will.

Fast-forward to today

Fast-forward to 21st Century Australia, where many families are concerned about how ageing and dementia affect testamentary capacity. As the law now stands, dementia does not automatically preclude someone from being able to make a will.

For example, in Apice v Gutkovich – Estate of Abraham (No . 2) [2010] NSWSC 1333 (22 November 2010), a New South Wales court had to decide whether a 93-year-old woman was legally capable of making a will. In this particular case, the elderly woman had been experiencing delusions for several years. She was also under Guardianship Tribunal Orders when she made one of her wills. These were orders for someone else to take charge of her financial and lifestyle decisions, because disability rendered the elderly woman incapable of doing so herself.

In all, the person in question made four other wills and amended existing wills in the 15 months prior to making her final will. In some of those cases, her doctor indicated that she was incapable of making or changing a will. However, her health subsequently improved, leading both her lawyer and her doctor to conclude that she regained testamentary capacity. In the end, the court also agreed.

In summary

Even if you haven’t lived with them for years or don’t get a chance to see them all that often, chances are that you still know your parents better than someone outside the family. So there’s nothing wrong with asking questions if your mother or father suddenly decides to make or change their will.

It is especially important to seek legal advice or intervention if the behaviour seems out of character, or if your parent has been diagnosed with dementia. Keep in mind, however, that even if they have dementia or a similar cognitive condition, they may still have testamentary capacity.

Twohill Lawyers are specialists in legal matters related to the elderly.  If you have any concerns about your personal or financial affairs as a person in your later years, or as the nearest and dearest of an elderly person, contact us today on (07) 5571 1450.