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Does A Person Have Capacity To Make A Will?

Most people would imagine that a person who has dementia is not capable of making, or even changing, a will. However the fact is that in some cases even a person with dementia can still be able to make their will or have testamentary capacity.

The legal test as to whether a person has the capacity to make a will comes from the old English case of Banks –v- Goodfellow (1870) 5 QB 549. In this case the deceased person was suffering from delusions; chiefly that his butcher was trying to kill him, even though this butcher had been dead for 11 years. In coming to its decision the court determined that for a person to have capacity to make a will there are five things which need to be established:
(i) The person making the will understands what a will does;
(ii) They can recall what property they have;
(iii) To remember those people that the person would ordinarily provide for under a will;
(iv) To give consideration to those people who would normally benefit under the will;
(v) The person does not suffer delusions about any person who would expect to receive an entitlement under the will.

The result in the case was the deceased did have capacity to make the will in question because the delusions he suffered were not about a person who would have normally benefited under his will, i.e. people don’t usually leave part of their estate to their butcher.

Moving forward to the 21st century and putting this case into perspective, we see the case law has evolved. The legal position now suggests that just because a person suffers from dementia, it will not automatically mean they are unable to make a will.

One of the most recent NSW cases dealing with this issue is cited as Apice v Gutkovich – Estate of Abraham (No . 2) [2010] NSWSC 1333 (22 November 2010). This case was about whether a 93 year old lady, Irene Abraham who had suffered from dementia for 5 years, had the capacity to make a will. At the time of making a will she was subject to Guardianship Tribunal Orders (orders that someone else should manage her financial and lifestyle decisions, because she was under disability).

Interestingly in the 15 months before her final will, the deceased made four other wills and codicils (an amendment to an existing will). On some of those occasions Ms Abraham’s doctor said she did not have the capacity to make any such will.

Nevertheless Ms Abrahams health improved somewhat and her doctor changed his opinion, while her solicitor was also of the opinion that she now had the capacity necessary to create a will. This evidence ultimately led to the court finding that she had capacity to make her will.

There are some very interesting parts of this case, which include finding that even though a person connot manage their day to day affairs and do not have capacity to make decision regarding their finances and lifestyle choice, they can still make a will. If you would like to read the whole case it can be found at using this linkhttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1333.html

James Kelly a Partner of Owen Hodge Lawyers acts in many cases where the issue of whether a person has capacity to make a will arises. In 2009 he acted for successful plaintiff’s in a testamentary capacity case which can be viewed athttp://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/1013.html

If you would like a consultation or like to know more about the capacity needed to make a will please contact James Kelly on 02 1800 770 780.