As estate planning lawyers, we see clients at all stages of their lives, from starting a family or their first business, to planning their retirement. As is the nature of our work, we often have clients who are very advanced in age who want to change how a previous Will divides their assets. With all clients, not just the elderly, testamentary capacity (or a person’s ability to give clear instructions regarding their intentions, and to fully understand the effect of those instructions) is in the forefront of our minds, however for obvious reasons, this becomes a much more relevant consideration when taking instructions from elderly clients.

It is not uncommon for us to receive enquiries from children or carers of elderly individuals, looking into changing the terms of the elderly person’s Will. Whilst we appreciate that it is sometimes much easier for others to make enquires and even provide initial instructions on behalf of elderly clients, the ultimate instructions must come from the client themselves and we must be satisfied that the client has the ability to give proper instructions and fully understands the effect of those instructions.

The Supreme Court of WA handed down a decision last week which highlights the importance of properly assessing a client’s testamentary capacity and their ability to understand the effect of the Will they are signing. In Monks v Monks [2019] WASC 16, Master Sanderson found that a Will made by the deceased, some 4 months before she passed away, was of no force and effect due to the deceased lacking mental capacity at the time of signing. This, coupled with a declaration that a previous Will had been revoked, meant that the deceased’s estate was intestate. Intestacy means dying without a Will, and requires that a person’s assets are carved up amongst family members according to a formula in the Administration Act 1903 (WA) without any regard to the person’s wishes.

Master Sanderson came to his decision notwithstanding the deceased’s Will being prepared by a solicitor and the solicitor giving evidence that he believed the deceased had testamentary capacity at the time of signing the Will. However, it was stated that the method by which instructions were taken and the Will was signed, on balance, did not allow Master Sanderson to conclude that the solicitor made a fully informed assessment of the deceased’s testamentary capacity. This, in conjunction with the medical evidence which supported the deceased lacking capacity, lead the Master Sanderson’s decision.

Whilst it was initially pleaded in the proceedings that the deceased was unduly influenced in making her new Will by the defendant who was caring for her, this was abandoned by the plaintiff during the trial and the real question was one of testamentary capacity.

It is our usual practice to request elderly clients to provide us with medical evidence regarding their testamentary capacity if we have any concerns in this regard, especially when the initial instructions are coming from a third party. This medical evidence, along with our own assessment of the testator’s testamentary capacity, are very useful in showing capacity of there is ever a challenge of the Will.

If you or any of your loved ones are considering making a Will, even if there are concerns about capacity, please contact our office on (08) 6244 0985 for a free 15 minute, no obligation discussion on the best way forward.

If you would like to read the full decision of Monks v Monks simply click here.