If you or someone you know are assisting an elderly relative update or replace a Will then you may like to read on.
When a person’s testamentary capacity (in other words whether the person was still of sound mind at the time of making their Will) is disputed after his or her death and his or her Will is challenged as a result, the following factors come into play.
- If the court is satisfied that the Will is rational on its face, testamentary capacity is presumed.
- If the person/s opposing the Will can establish doubt regarding testamentary capacity, the presumption regarding testamentary capacity is displaced.
- Once the presumption of testamentary capacity is displaced, the person/s seeking to enforce the terms of the Will bear responsibility for establishing that the person had testamentary capacity at the time of making the Will.
The takeaway message from the above is that if there is any doubt (and in some cases even if there is no doubt but a dispute about a Will is likely to arise) about a person’s testamentary capacity then a proper medical assessment of testamentary capacity ought to be sought and obtained before making the Will. Whilst some people may be resistant to being assessed, if it is explained to them that the assessment ought to in fact strengthen the likelihood of their testamentary wishes expressed in their Will being upheld as valid by a court if their Will is challenged, then they ought to see the benefit in being assessed and agree to it. Somewhat obviously, the details and outcome of the assessment ought to be retained and where the Will is being prepared by a lawyer, a copy of it ought to be provided.
As an aside, you may also like to note that a level of cognitive impairment does not, by itself, prevent a person from making a valid Will. Cognitive impairment is often associated with aging and becomes a matter of degree when determining if a person has testamentary capacity. In other words, people can quite commonly not be as sharp as they perhaps used to be, but still be fully aware of what they are doing when making a Will, and this is where a proper medical assessment can be very helpful.
Finally, if you have read this far and think that you need some practical advice or assistance in relation to your situation, then now is probably the time to get in touch. Austral Legal can help and we offer an initial discounted 30-minute SmartMove appointment for $80 by phone or in person at our office. Bookings can be made online through our website or simply by phoning our office on 08 9745 9550. Once we have a handle on what is required, we may well be able to offer a fixed fee for any further legal services, giving you cost certainty from the start. Austral Legal. Practical advice.