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Doctors are routinely asked for an opinion on whether a person has or did have the capacity to make a will. This question is important in the context of will making, as only persons of sound mind, memory and understanding are able to make a valid will. The testamentary capacity of a testator is not always apparent to non-medically trained legal professionals, and hence the need for an expert opinion on the testamentary capacity of a testator.
There are two distinct times in the will-making process where a lawyer might insist on a doctor’s assessment. Usually these times are prior to the lawyer taking instructions from the testator and then again prior to execution of the completed will. These two times are crucial in that normally a court will require a testator to be competent at the time of execution, however in circumstances where the testator has declined mentally since giving instructions, it may be sufficient that he or she had capacity at the time of giving instructions.
Factors Affecting Testamentary Capacity
For the purposes of the law, the case of Banks v Goodfellow[1] is still the leading authority on the criteria for establishing testamentary capacity. Despite the age of this case, the law remains relevant.The Court held that the four criteria to be used for determining whether a person had testamentary capacity are that the testator:
a) understands that he or she is giving instructions for the disposal of his or her property
after their death;
b) can recollect the extent and character of his or her property and dispose of it with
understanding and reason
c) can recall and understand the claims of potential heirs, such as his or her family; and
d) is not suffering from any disorder of mind such as delusions or hallucinations whichinfluence his or her decisions.
Delusions which will influence a Testator's Decisions
Importantly there are many mental illnesses and delusional states which will not impact on the validity, for example somatic delusions not affecting the testator's understanding of property or the view of potential heirs will not interfere with that person's capacity to make a valid will.
It is important to recognise that not all delusions nor all mental illnesses will impact on a testator’s decisions sufficiently to cause loss of testamentary capacity. In many cases of mental illness the testator will have lucid intervals, and it is important to note that a will made during one of these intervals will be valid. Ultimately this is a question of fact to be verified in each case, however the legal literature on the subject suggests examples of delusions which will influence a testator's decisions include:
- where a person holds persecutory delusions about a family member, causing the testator to exclude that person from their will
- delusions of poverty whereby the testator does not realise the worth of his or her estate.
How to Evaluate Testamentary Capacity
Assessing a testator's testamentary capacity in a single interview can be problematic, in that it exposes a medical practitioner to the risk that mental incapacity is not apparent because a lucid moment coincides with the practitioner's interview.
To that end an assessment will be most accurate if it occurs over a period of time rather than at one interview.
In the least, medical practitioners should assess a patient's testamentary capacity over two separate consultations, the second of which should ideally be on the day that the patient executes the will.
While multiple consultations to assess testamentary capacity may not always be possible, practitioners should be aware of the risks of assessing capacity in a single interview.
The examination itself could be comprised of a semi-structured interview in which the practitioner asks a series of questions including:
-
asking the testator to explain the effect of a will, and asking whether he or she understands what would happen to his or her property if he or she did not make one
-
asking the testator to give a general estimate of the property and its value
-
asking the testator to describe the reasoning behind his or her decisions to include or exclude potential heirs
-
asking the testator whether they understand that the will revokes all previous wills.
If satisfied with the testator's responses to the above issues, the medical practitioner should attempt to ascertain whether the testator is suffering under any mental illness, disability or delusion which would preclude testamentary capacity. Practitioners should remember that mental illness does not automatically mean that the testator does not have capacity. A testator may be suffering from schizophrenia and still able to satisfy the above criteria to demonstrate testamentary capacity.
In order to assess the testator's mental state medical practitioners may find it helpful to obtain information from medical records and other practitioners (where they are not the usual treating doctor), family members and other people involved with the care of the testator
. Obviously medical practitioners should consult with the testator and his or her lawyer to obtain the necessary consents before seeking this additional information.
Symptoms of Testamentary Incapacity
Dr Hayley Bennett suggests that the following symptoms are potential signs of incapacity:
Dr Bennett suggests that patients displaying these kinds of symptoms at the time of giving instructions for the preparation or signing of their will may be suffering from some form of mental incapacity.
Retrospective Assessments
Often medical practitioners will be asked to give a retrospective assessment of whether a testator did or did not have testamentary capacity at the time of making his or her will after that person has died. These retrospective assessments are difficult in that competency is far easier to demonstrate under circumstances where the patient is available for observation and questioning. Where some medical conditions existed, questions may be raised after a person’s death about his or her competence at a particular time.
When practitioners are requested to make a retrospective assessment, they should carefully attempt to obtain the following documents:
-
all medical records (which may contain formal diagnoses)
-
results of any neuropsychological examinations
-
neuroimaging results
-
references as to the testator’s mental state or behaviour
-
relevant financial documents
-
other personal documents such as:
-
chequebooks
-
diaries
-
business records, and
-
contracts.
The will itself and any contemporaneous notes made by the legal practitioner preparing the will may offer additional insight into the mental state of the testator. In addition to the above materials, the practitioner should attempt to gather corroborative information about the deceased’s behaviour and functioning from:
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the surviving spouse
-
relatives
-
friends, and
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business associates.
After receipt of the above information, a medical practitioner can make an informed assessment as to whether the testator had or was likely to have had testamentary capacity at the time of making the will.
Consent
As with any medical examination, it is necessary that a doctor have the testator’s consent prior to proceeding with an assessment of testamentary capacity. In the case of a retrospective assessment, a medical practitioner still requires the consent of the deceased’s legal personal representative.
What if I’m a Beneficiary in the Will?
One final point which the Medical Practitioners Board of Victoria stresses, is that a practitioner who is asked to witness a will should not do so where he or she is a beneficiary in the will This same principle applies to medical practitioners providing an assessment or retrospective assessment of testamentary capacity, on the basis that a clear conflict of interest exists.
Medical Practitioners are strongly urged to seek independent legal advice if they have queries about any matter arising in the context of an assessment of testamentary capacity.
Legal Services
AMA Victoria
This article is intended to provide general advice only. The contents do not constitute legal advice and should not be relied upon as such. Readers should seek specific expert and legal advice in relation to the information provided in this article.
[2]Carmelle Peisah and Henry Brodaty, Dementia and the Will-making process: the role of the medical practitioner, The Medical Journal of Australia, Vol 161, 19 September 1994, pp381-384.
[3] Carmelle Peisah, Op Cit, pp381-384.
[4] Dr Hayley Bennett, Will Making for the Elderly – Impact of Cognitive Impairment on Testamentary
[5] Carmelle Peisah, Op Cit, p.383.
[6] Non-medical documents should be requested from the instructing solicitor
[7] Medical Practitioners Board of Victoria, Medico-Legal Guidelines March 2006.