Snapshot
- A diagnosis of dementia is not determinative of whether a client has capacity to make a will.
- The Court of Appeal has recently confirmed that the evidence of an experienced solicitor may be entitled to substantial weight in contested capacity cases.
- Contemporaneous documentary evidence from your file can be critical in assisting a court to determine whether your client had testamentary capacity at the time of making the will.
According to Dementia Australia, in 2022 there are an estimated 487,500 Australians living with dementia and, without a medical breakthrough, the number of people with dementia is expected to increase to 1,076,000 by 2058.
Quite often, a diagnosis of dementia will prompt a person to get their affairs in order, and they may want to make a new will. The recent Court of Appeal decision in Starr v Miller [2022] NSWCA 46 (‘Starr’), provides insight into what a solicitor can do to improve the chances of a will withstanding a challenge on the grounds of lack of capacity.
Recent NSWCA case
In Starr, the will client was referred by her general practitioner to a psycho-geriatrician who started treating her for Alzheimer’s disease in December 2011. In February 2012, she telephoned her accountant to ask if he would accompany her to see her solicitor about a new will. The accountant arranged the meeting with the solicitor and expressed concern to him that the client was in the early stages of dementia.
The will client was clear in her instructions. She wanted the daughter who was living with her to receive the ‘farm’ and the off-farm assets were to be divided between her other three daughters. The accountant suggested that she might consider transferring the farm inter vivos and the solicitor expressed some reservations about this.
Following the meeting, the solicitor wrote to the client confirming her instructions, and set out the advantages and disadvantages of an inter vivos transfer of the farm. He also wrote to the client’s general practitioner, noting the client was in the early stages of dementia, and sought his view as to whether she had capacity to make a new will and transfer the property to her daughter. The doctor responded, ‘It is my understanding that, at this time, Nancy understands the implications of her will.’ It is telling that the Court did not rely on the doctor’s response as proof of its truth but as relevant evidence of an experienced practitioner making enquiries of a medical practitioner.
By 16 July 2012, the client decided she would not transfer the farm while she was still alive and was ready to sign the will. The solicitor made a recording of the meeting that day which was later transcribed by his secretary. The recording was not available to be played at the hearing, but the transcript revealed that the solicitor had asked the client open-ended questions going to the Banks v Goodfellow test, including:
- ‘What are you here for today?’
- ‘What is a will?’
- ‘What property do you own?’
- ‘When does a will come into effect?’
- ‘What do you want to do in your will?’ and
- ‘Why?’
The transcript also revealed that the solicitor read the will aloud to the client and asked her to read through a copy of it as he read it aloud. He then asked her if she had any questions and whether she was happy to sign it.
After the will was signed, the solicitor wrote again to the client’s general practitioner seeking a further report, and stated the solicitor ‘was of the opinion that Nancy had full testamentary capacity at the time and that she understood the nature of the Will and its effect.’ The Court did not allow into evidence the doctor’s opinion contained in his response, as its basis was not explained in the report and there was no evidence of any formal testing. The Court did, however, place great importance on the solicitor’s opinion as to capacity, expressed in the letter to the doctor shortly after the will was executed.
The hearing in the contested probate proceedings took place eight years after the will was signed. The solicitor was by then retired and had some difficulty in recalling what had happened. The Court of Appeal held that the primary judge was entitled to treat the solicitor’s limited recollection in cross-examination as ‘not of great significance’ and ‘was instead entitled, as he did, to place much greater weight on the contemporaneous documents and the logical inferences to be drawn from them’ in determining that the deceased had testamentary capacity (at [36]).
In this case, the critical contemporaneous documentary evidence included the solicitor’s letters to the client confirming her instructions, his letters to the doctor confirming the solicitor’s awareness of the diagnosis of dementia and expressing the solicitor’s opinion as to the client’s capacity to make a will, as well as the transcript of the meeting where the will was signed.
Tips to help withstand a will challenge
Practitioners should remember that a diagnosis of dementia is not incompatible with testamentary capacity. Where a solicitor is instructed by a client with dementia to prepare a will, there are a few tips which may help withstand a challenge to the will:
- Make enquiries about any diagnosis of dementia or other condition which may affect the client’s testamentary capacity;
- Ask open-ended questions going to the Banks v Goodfellow test and keep a record of the questions asked and the answers given;
- Read the will aloud to the client and confirm knowledge and approval of its contents; and
- Make a contemporaneous record of your opinion as to the client’s capacity to make a will and the basis upon which you have formed that opinion.
This article originally appeared on lsj.com.au