- A person has to have testamentary capacity to make a Will or change their current Will. That is, they need to understand what they are doing and provide adequate instructions to their solicitor.
- If a person has dementia, in the many forms it can take, they may not appear to have the understanding and reasoning required to make a new Will.
- However, a person can have capacity to make a new Will even though they have been diagnosed with a form of dementia.
- An experienced estate planning solicitor needs to be involved to ensure a Will is valid.
In 2019 two NSW Court of Appeal cases looked at Wills signed by deceased persons who appeared to be suffering dementia at the time the Wills were drafted. The Court gave significant weight to the evidence from the solicitors who drafted the Wills and their file notes, recollections and usual practise in drafting. This was regardless of the medical evidence which provided in both cases the deceased was suffering varying degrees of dementia.
Legal Test for capacity
The legal test for capacity is not the same as a medical test for capacity.
A person has testamentary capacity if at the time they gave instruction to a solicitor to draft a Will they:
- understood the nature of what a Will is,
- understood the extent of their assets, property and financial position in general terms,
- comprehended and appreciated who they ought to leave their estate to; and
- had no disorder or delusion of the mind that would prevent or influence them disposing of their property in a way they would not have done if they had no disorder of the mind,
These four issues are outlined in the United Kingdom court case of Banks v Goodfellow (1870), and continue to provide the benchmark for capacity for legal purposes and Will making today in New South Wales.
NSW Court of Appeal cases
CASE No.1 – Croft v Sanders  NSWCA 303
This case involved the deceased, Warwick Croft who signed a Will in September 2013. Mr Croft died in 2016 and was aged 85.
It was alleged by family members that Mr Croft had suffered dementia and hallucinations. He believed his daughters were running a brothel, someone had kidnapped his wife and a daughter was possessed by demons.
The medical evidence suggested the delusions or hallucinations were episodic rather than continuous and Mr Croft was not under delusions when he gave instructions to his solicitor to prepare his Will. Medical evidence found a mild underlying cognitive impairment.
Mr Croft saw a psychiatrist in April 2013 and he saw no sign of memory disturbance. However, other medical evidence disputed the psychiatrist’s findings.
Mr Croft saw Mr Miller, an experienced estate planning solicitor to fix his Will in 2013. Mr Miller said that it was his usual practise to obtain a letter from the client’s treating doctor if a client had questionable capacity.
Mr Miller took detailed file notes of his attendance with Mr Croft.
Mr Miller was previously acquainted with Mr Croft as they had both attended the same local Church on a few occasions.
In August 2013, Mr Croft’s son-in-law and other family members had lunch with Mr Croft and evidence was given to the Court that Mr Croft ‘engaged in general discussion at the table and there was nothing unusual in his demeanour or behaviour’.
The Court of Appeal decided that the evidence by Mr Miller, Mr Croft’s son-in-law and other solicitors Mr Croft had dealt with in family law proceedings was adequate to prove that Mr Croft’s underlying dementia did not deprive him of testamentary capacity at the time he gave instructions to Mr Miller to prepare his Will.
The September 2013 Will was upheld and valid.
CASE No.2 – Drivas v Jakopovic  NSWCA 218
This case involved Marija Jakopovic (the Deceased) who signed a Will in September 2007. The Deceased died in 2015 and was aged 82.
The NSW Supreme Court held the Deceased had capacity to change her Will. The Deceased’s granddaughter appealed to the Court of Appeal alleging the Deceased had dementia and wasn’t able to validly sign her Will in September 2007.
The medical evidence revealed in October 2006, the Deceased had significant vascular disease in the brain, consistent with dementia. This was before the Deceased signed her 2007 Will. Further evidence showed that in June 2007 the Deceased was unable to recall her address correctly and had problems with executive function. Dr Beran, an expert medical witness was of the opinion that the Deceased was unable to validly sign the 2007 Will due to the degree of her dementia.
Evidence from the Deceased’s solicitor, Mr Taylor who prepared the Will was interesting.
Mr Taylor, who had over 30 years experience in preparing Wills did not keep a file note about the Deceased’s capacity after his meeting with her. Neither did he have any independent recollection of his dealings with her. However, there was evidence that Mr Taylor had seen the Deceased over a period of an hour and a half, enough time to take instructions. Further, it was his usual practise that, if capacity was an issue, he would take careful file notes. As Mr Taylor hadn’t taken file notes, he was satisfied that the Deceased’s testamentary capacity was adequate to make a Will.
In a nutshell, the Court of Appeal accepted the evidence by Mr Taylor and decided that the Deceased had the testamentary capacity required to make the 2007 Will. This was regardless of medical evidence to the contrary.
- It is far from ‘black and white’ as to whether a person with dementia can make or change a Will. What is clear is that a diagnosis of dementia does not mean the sufferer cannot make a Will.
- All the evidence, medical and otherwise will be looked at very closely if a Will is challenged in Court.
- It is not the person’s general state of health including dementia at issue rather the person’s cognitive understanding at a particular point in time that is, when providing instructions to his or her solicitor.
- Solicitors in the area need to be aware of the what to look for if there is any doubt as to a client’s capacity.