31 March 2023

Testamentary Capacity – An Update

Last Will And Testament

A recent decision of the WA Supreme Court confirms that you can still make a valid will even though you may have already been diagnosed with dementia.

We have previously written about testamentary capacity and the decision in Monks v Monks [2019] WASC 16, in which the Court determined that the deceased’s Will was invalid because she lacked capacity.

The Supreme Court handed now down a decision in the matter of Marmion v Keogh [2022] WASC 425 in which it determined that the deceased’s Will was in fact valid, despite medical evidence that the deceased was suffering from early dementia and short-term memory loss at the time he made it.

This decision reminds us that the Court considers the question of testamentary capacity on a case-by-case basis, and there is no simple answer to the question of whether a testator has capacity. Mental capacity is a spectrum – it is not black and white.

What is testamentary capacity?

The High Court considers that testamentary capacity has 4 essential elements:

  1. The testator understands the nature and effect of the Will;
  2. The testator understands what property is in their estate;
  3. The testator is aware of all the people that may have a claim to a portion of their estate; and
  4. The testator is free from any medical condition that prevents them from having or exercising their natural faculties in making a Will.

 The interesting aspect of the decision in Marmion v Keogh is point 4 – was the deceased suffering from a medical condition that prevented him from having or exercising his natural faculties?

Despite a diagnosis of early dementia of the Alzheimer’s type, prolific short-term memory loss, and a finding by the deceased’s doctor that he lacked the capacity to understand the effect of making an Enduring Power of Attorney, the Court found that the deceased did in fact have the capacity to make his last Will.

In making this decision, the Court stressed that medical evidence alone is not the deciding factor, although it may assist the Court to reach its decision.

The takeaway?

Just because a friend or family member has dementia or a similar condition, doesn’t mean they can’t attend to their estate planning, make a Will, or the Will they have made is invalid.

If this article has raised any questions for you, please get in touch with one of our estate lawyers for an initial consultation.

Brandon Hetherington has considerable experience across the realms of Wills and estate planning, probate and family provision claims, property law, commercial law and litigation. Brandon’s work has seen him appear frequently across the Magistrates Court, District Court, Supreme Court, and the State Administrative Tribunal.