We often get enquiries from people with family members who are in the twilight of their lives as to whether or not a person who is suffering from dementia, Alzheimer’s, or some other mental condition are automatically precluded from making a Will.
Many people think that simply because a person has been diagnosed with an illness like those listed above they no longer have the capacity to make a Will (or Power of Attorney and Enduring Guardianship) by default.
Whilst this might be true in some circumstances, the general proposition that a person who suffers from one of these illnesses cannot make a Will is not correct.
Assessing a person’s capacity to make a Will must be done on a case-by-case basis.
In reality, the legal threshold for testamentary capacity is quite low, and it might be the case that a person who is suffering from some sort of medical condition that affects their decision making still has the capacity to make a Will.
Generally speaking, a solicitor will assess the following in determining whether or not a person has testamentary capacity:
1. Does the person understand what a Will is?
2. Does the person have a general understanding of what assets they have?
3. Does the person understand the people they should consider in dividing their assets?
4. Is the person under any delusion or other affliction that might be compromising their decision making?
A person does not necessarily need to have a complex and detailed understanding of the above matters, and testamentary capacity can be a fluid concept. For example, a person’s capacity can fluctuate, and whilst they may lack capacity to make a Will on one day, it is possible for them to regain said capacity on another. A solicitor has to determine in their own mind whether or not they think that their client has testamentary capacity.
However a solicitor will often be assisted by a medical report, from a doctor who has treated the client, which contains their opinion as to whether or not the client has the cognitive capacity to understand the nature and effect of a Will (or any other document the solicitor has been asked to prepare).
If you are a family member of a person over whom there is a question about their capacity and you have been asked to arrange for them to make a Will or execute some other document, the best thing you can do is have them assessed by their medical practitioner and interviewed by an independent solicitor to determine whether or not capacity exists.
If a person does not have testamentary capacity then they will not be able to execute a Will. Section 18 of the Succession Act 2006 NSW allows for an application to be made to the Supreme Court for a Will to be made, altered, or revoked for a person without testamentary capacity.
The Guardianship Division of the NSW Trustee & Guardian has mechanisms in place for Financial Management and/or Care Orders to be made for persons who lack capacity to make Powers of Attorney or Enduring Guardianships.
Daniel McKinnon
Since graduating with two degrees in Law and Commerce from the University of Wollongong, Daniel’s spent over ten years solving a wide range of legal problems for the people of Western Sydney.