Are Cognition Tests Getting More Difficult?

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Grandpa didn’t recognise me – a first-person case study

I knew I was his favourite granddaughter and I was shocked when visiting him some months ago he momentarily didn’t recognise me. He was aged 85 and fairly fit and healthy although he was slowing down. I had never thought that he might be suffering from dementia. He was also selling his house with Granny to move into a retirement village.

I went with them to the lawyer to assist them with the paperwork and quietly mentioned to him my concerns. The lawyer asked grandpa a lot of personal questions and a few things about the news of the day and his assets. He confidentially advised me that he thought that it looked as though grandpa was losing his capacity for cognition a bit. However, the doctor assured me that grandpa had the legal capacity to proceed with the sale for the move into their new digs.

Who decides on legal capacity?

The above example demonstrates the capacity when it comes to cognition and making important life decisions. However, it is important to understand that when it comes to Wills, they are a completely different matter – especially homemade Wills. The reason for this is that there is no legally trained professional who can attest as to that person’s mental capacity – as well as explaining the contents of the will. Over a recent number of years, many Wills have been contested for this very reason. 

What does the law require to make a Will?

The classic statement of the law still followed today is set out in an old English case decided in 1870 and known as Banks v Goodfellow. In that case, Mr Justice Cockburn prescribed three essentials.

  1. Firstly, it is essential that the individual understands that a Will is being made and that the will-maker fully appreciates to whom their property is passing.
  2. Secondly, the will-maker must understand the extent of the property of which they are disposing,
  3. Thirdly the will-maker must be able to comprehend and appreciate the claims to which they ought to give effect. That the will-maker should have some understanding as to their proposed beneficiaries and where they fit within their moral duty.

Finally, the Will maker must not suffer from paranoia or delusions.

This law is still valid today.

Who decides if a particular person has cognition?

The Courts have held that there is a hierarchy of people who are best able to give evidence in these sorts of matters. Firstly those who are closest to the particular person: spouse, child or someone who lives with them.

Secondly, a longer-term General Practitioner should be able to assist. This is because a GP normally sees a patient fairly regularly over the years. That GP may, if they are not sure of the diagnosis, refer the patient to a specialist geriatrician. Those specialties have recognised tests that can be applied in assisting the GP, upon receipt of the specialist doctor’s report, they can then advise appropriately.

How do you best settle on a lasting Will?

We can help! We always recommend the following steps when creating or updating your existing Will documents (yes, updating is just as important as creating a Will). 

1.  Instruct a knowledgeable Lawyer

2.  Ensure that Lawyer tests for testamentary capacity

3.  That lawyer keeps file notes with the Will in safe custody

4.  If the lawyer indicates doubts to the Will maker encourage him or her to get a medical report from the GP and if necessary a referred Geriatrician.

5.  Does the Will maker have knowledge of and approve the contents of the will.

If you have any questions about cognition or creating a Will, please feel free to call us at 1800 770 780 to schedule a consultation. The attorneys at Owen Hodge Lawyers would be happy to provide guidance and information.

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