Guide to testamentary capacity

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Published in the Newcastle Herald 1 May 2018

A recent case is a timely reminder of the rules of testamentary capacity with the NSW Court of Appeal dismissing a claim that a dementia patient was suffering an “insane delusion” when she executed her will bequeathing over $1million to her cleaner.

The deceased’s niece alleged she was cut out of the will because she would not arrange euthanasia for her aunt (notwithstanding the fact it is illegal in Australia). The niece argued her aunt lacked capacity at the time of signing the will and consequently, a prior will (giving the niece everything) should be reinstated.

Evidence was adduced that around the time of signing the will, the deceased had been diagnosed with dementia and exhibited signs of confusion, paranoia, and hallucinations and/or delusions.

Notwithstanding this evidence, the court determined that at the critical times of instructing her lawyer and signing her will, the deceased had full testamentary capacity.

The court warned, “great care needs to be exercised before concluding that a harsh or unreasonable judgement of another person amounts to a delusion”.

“Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of ordinary members of the community, but that does not make the will invalid”, said the court.

So, what are the rules of testamentary capacity? Namely, capacity is not determined by the moral correctness of the terms of the will. Capacity requires the testator to (1) understand the nature of the act of making a will; (2) to understand the extent of the property the subject of the will; and (3) comprehend moral claims of potential beneficiaries.

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