When someone comes to a lawyer to make a will, it is important that we ensure that the will-maker has the mental capacity to make their will. The mental capacity that the will-maker must have is called ‘testamentary capacity’. We need to establish that the person having the will prepared is aware of what the document is and what a will does, what property they have, and who they should consider in making their will.
In this article, we explore what the lawyer’s role is in assessing capacity, how testamentary capacity may come into question, what will happen if capacity is in doubt, and the key principles of capacity.
The lawyer’s role in assessing capacity
The lawyer’s role is to carry out a legal, not medical, assessment of our client’s mental capacity. Lawyers are not meant to be experts in neuroscience, but they do have an obligation to assess whether the client has the legal capacity to make a will. A medical opinion may however assist the lawyer in performing their legal assessment of capacity.
There is a legal test for elementary capacity. It is basically four questions that a lawyer has to ask themselves when assessing their client’s capacity to make a will. Those questions are:
- Does the client understand the nature and effect of making a will, i.e., what a will is and what it does?
- Does the client understand the nature and extent of their assets and liabilities?
- Does the client understand who might have a claim on their estate or the people to whom they have an obligation?
- Is there any disorder of the client’s mind (such as dementia, untreated mental illness, a brain injury, or other cognitive impairment) which is affecting the way they’re thinking about disposing of their assets?
If the lawyer is satisfied that the answer to the first three questions is ‘yes’ and that there are no apparent “disorders, then they can make a legal finding that their client has testamentary capacity.
How capacity can come into question
When a client visits us, it is our job, no matter who the client is, to form a view about capacity. Capacity is always presumed, but sometimes there will be certain factors or ‘red flags’ which mean that we have to explore the issue more carefully. None of these factors in and of themselves mean that capacity is not present. These may include:
– There is an active diagnosis of cognitive impairment
– There is an active diagnosis of cognitive impairment
– Memory loss, confusion, disorientation
– Difficulty communicating, asking appropriate questions, or responding to questions
– The client is sick, in hospital, or in aged care
– The client is accompanied by friends, family or carers who are reluctant to let the client speak for themselves
– The client’s instructions have changed dramatically or unusually
What happens when there is doubt about capacity
If red flags arise and a lawyer is unable to make a positive finding of capacity, then the next step would be to refer the client to a medical professional for a medical capacity assessment.
That medical professional must be someone that has experience in the assessment of cognitive capacity. It is not enough to just get a letter from a GP. Ideally, we would like the report to be from a specialist doctor with expertise in assessing testamentary capacity. This might be geriatrician or a neuropsychologist. We will prepare a careful brief to the doctor asking them to give their medical view about whether the client has capacity to make not just any will, but the particular will in question.
The final report will assist in making a final judgement about whether the client has the requisite capacity to make decisions about their will, but will not necessarily be determinative. Sometimes the answer will be yes, they have the capacity. Other times the answer might be that they have the capacity to make only a simple will. It may be decided that the client does not have the capacity to make a very complex will with a raft of complex structures, like testamentary trusts and so on. But they may have the capacity to make a simple will because the capacity is decision-specific.
If a specialist physician thinks that the client does not have the capacity to make any kind of will, the next question is, what can be done? Are there treatment options? Or could a change in environmental factors assist the client in regaining capacity? It may well be, for example, if mental illness is the issue, there may be medications and treatments that can assist in regaining capacity. If the client has significant hearing problems, we really slow down and take our time to ensure that we are speaking slowly and clearly, whilst minimising background noise. There may be times of the day that suit the will-maker more than others.
There are all sorts of reasons why a client might not understand, and sometimes things can be done to assist the client in having the capacity to make their own decisions. It is important to explore every possible avenue to give them the autonomy to make their own decisions.
When there is no prospect of regaining capacity
In a situation where a client does not have the capacity and there is no prospect of regaining capacity, then lawyers may need to seek the appointment of a substitute decision-maker. For a will, this may mean obtaining something called a Statutory Will from the Court. The Court has the power to make a will on behalf of somebody who does not have the capacity to do so.
Disputes over testamentary capacity
If a will maker dies and there is a question about whether they had capacity, it can give rise to a legal challenge to the Will by an interested party who may assert that the Will should be set aside or effectively ‘cancelled’ because of a lack of capacity. A careful assessment of capacity at the time of making the will can protect the estate and the intended beneficiaries in the event of this kind of challenge by a disgruntled family member or other potential beneficiary.
Key principles of capacity
If capacity does come into question, we make sure the will-maker is given every opportunity to make their own decisions. It is paramount that the will-maker is given the dignity and autonomy of making their own choices, wherever possible.
The lawyer should keep the following key principles in mind when performing their capacity assessment (Source: The Law Society of NSW, ‘When a Client’s Capacity Is In Doubt – A Practical Guide For Solicitors’, Sydney NSW, p.6):
- Always presume a person has mental capacity.
- Mental capacity is decision specific – if the client can make some but not all decisions then they have a right to make as many decisions as possible.
- Mental capacity is fluid. It is possible to lack capacity one day and have it the next.
- Don’t make assumptions that a person lacks capacity because of their age, appearance, disability or behaviour.
- Assess a person’s decision-making ability – not the decision they make. Lawyers cannot form a view that the client lacks capacity just because they think that the client is being reckless, strange, or inconsiderate.
- Respect a person’s privacy.
- Substitute decision-making is a last resort.
The DDCS wills and estate planning team are highly experienced and specialise in helping people navigate issues like these. To discuss your circumstances, phone our team on (02) 62127600 or fill in the contact us form and our team will be in touch.