Does my client have capacity to make a new will?

There are many cases where a lawyer is required to assess whether a client has the requisite capacity to give instructions for making a will.

It is essential that the ethical, moral and professional standards of the lawyer are maintained and, if the assessment as to the client’s capacity by the lawyer is such that he or she considers the client lacks the ability to properly understand documents and even simple questions, then it is becomes necessary to either decline to accept the instructions or alternatively to request that a medical certificate is provided that will determine the capacity issue.  This is at all times a question of fact based on the evidence available.  For example, if your client suffers from dementia and/or is in a nursing home and wishes to completely omit family members from a will in favour of strangers as nominated beneficiaries the lawyer should be alerted to a possible problem.

Remember once the client is deceased and there is a challenge to the will by a family member the circumstances surrounding the making of the will are scrutinised.

Is it just easier to turn a blind eye to the client’s incapacity or to give the client “the benefit of the doubt”?  Clearly not is the answer and in the 2008 Queensland case of the Legal Services Commissioner v Gregory Francis Ford the court laid down some ground rules and reinforced long established principles:

  • Does the client understand the nature of the act (in that he or she is giving instructions for the disposal of property after death and the effects of such disposal
  • Does the client understand the extent of the property of which he or she is disposing
  • Can the client comprehend and appreciate the claims of potential heirs, such as family members
  • Could there exist an insane delusion to adversely influence the mind of your client
  • It is not however necessary that the client should view his will with the precision of a lawyer and understand the principles in their legal form
  • It is the soundness of mind of the client that is relevant in the assessments and not the health of the body of the client
  • When considering the question of mental incapacity a court will look at the apparent rationality of the terms of the will

As a lawyer acting in the best interest of the client there are a number of steps to be taken:

  • Following preparation of the will another conference will be arranged so that the client is able to read and discuss the provisions of the will, explain it to the lawyer and in fact approve the contents of the will
  • In today’s age many clients are internet savvy and the will can be emailed in advance of the conference to ensure any errors may be corrected
  • It must be evident to the lawyer that the client has not been pressed into giving instructions favouring a family member particularly if the family member to benefit from the will has delivered the client to the lawyer
  • The client must exercise free will in signing the will

The warning bells to a lawyer may be summarised as follows:

  • Does the client have difficulty with recall or is there memory loss from one meeting to the next
  • Is there an ongoing difficulty with communication
  • Is there a lack of mental flexibility
  • Are there problems with simple calculations that were not evident previously
  • Is the client disoriented
  • Is the client in a hospital or an aged care facility
  • Has there been a change of solicitors several times over a short period of time particularly if the change in legal representation had been from a long standing solicitor
  • Has the client been accompanied to the office by many other friends, family members or carers and the client is not given the opportunity to speak on his own
  • The client shows a limited ability to interact with the lawyer
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