In recent years, there has been a considerable rise in the number of cases of dementia and Alzheimer's disease in the Australian population. These illnesses are particularly concerning, as they can often lead to a reduction in capacity for the affected individual and difficulties for members of the family as time goes by. In particular, major difficulties can arise when it comes to the creation of a will, if the individual is so affected. What has to be considered here and is mental capacity grounds for contesting a will in some circumstances?
The law will try to determine whether the person making the will had "freedom of testamentary disposition," when drawing up the documentation. Usually, everybody has complete freedom in leaving their property and possessions to beneficiaries, but what if the person was suffering from mental incapacity when they were making these decisions? Is the will binding, as a consequence?
If this question arises, a senior medical doctor is brought in to review all the information in the case. It's a lot easier to make this determination at the time when the will is signed, rather than waiting until some kind of challenge is levelled after their death.
The doctor will want to know that the person creating the will was very clear about what they were doing. They'll want to know if they were aware of the precise nature of the document they were signing and will also want to know if they understood the value of the property that they were dealing with. Next, the doctor will want to know if they recognised the people they were bequeathing property to and this will be particularly important if one of the individuals is a relative stranger in real terms. Does the stranger have a reasonable right to expect the property and exactly what is or was their relationship with the person making the will? Fundamentally, it's important to remember that somebody who has been diagnosed with a specific type of mental illness may not have the legal capacity to make a subsequent will.
Close members of the family need to be very aware of all the beneficiaries in the will and in particular of the presence of any strangers. It's not unheard of for people with an ulterior motive to pressurise somebody in their latter days, to persuade them to bequeath their assets to a particular "cause."
What Happens during a Challenge
If a will is challenged based on testamentary capacity, then in legal terms a previous will can take precedence. However, the same type of questions will need to be asked and answered in order to clear that will. If all the wills are found to be unenforceable for these reasons then everything will need to be treated as "intestate," and responsibility will fall to one of the close family members to sort out the details.
What to Do Next
If you suspect incapacity or are worried about a particular individual named in the will, get in touch with a solicitor for further advice.Share
10 October 2017
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