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CHAPTER 4 - Capacity to make a will

Contents:

4. 1. Introduction

4. 2. The classic statement of the law

4. 3. The present day requirements for will-making capacity

4. 4. The responsibilities of lawyers when taking instructions for and seeing tothe execution of wills where the will-making capacity of the will-maker is indoubt

4. 5. The tendency to uphold the will-makers right to make a will

4. 6. Proving a will is valid – the onus of proof and who has it

4. 7. Proving a will –suspicious circumstances and undue influence4. 7. 1. Suspicious circumstances4. 7. 2. Undue influence4. 7. 3. The role of the expert in the assessment of undue influence

4. 8. Court intervention to revoke or alter a will made by a person lackingwill-making capacity

4. 9. Making and changing wills where will-making capacity is in doubt – therole of the lawyer and the role of the capacity assessor4. 9. 1. The practice implication for lawyers arising from the current law – anoverview of general considerations4. 9. 2. Caution when taking instructions for the drafting of a will4. 9. 3. Conditions which might affect capacity4. 9. 4. Expert opinions – contemporaneous and retrospective4. 9. 5. Writing an expert report4. 9. 6. Experts in court

4. 10. Court authorised (statutory) wills

4. 11. Conclusion

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4. 1. IntroductionAs our society becomes richer and more and more people have real and personalproperty to leave when they die, and because of the likelihood of a great increasein the prevalence of dementia, 1 it is likely that there will be many more peoplewith cognitive disabilities making or changing their wills near the end of theirlives. There will be challenges to some of these wills, some not anticipated,making it necessary to collect the evidence of the will-makers will-makingcapacity after their deaths.

In this chapter we set out the law relating to will-making capacity, which is whatwe call testamentary capacity, as well as the law that has been developed to allowchallenges to wills made when the will-maker has lacked capacity, where the willwas made in suspicious circumstances or where the will was made as a result ofundue influence. The chapter also sets out what is expected of solicitors whenacting for people whose will-making capacity is in doubt. It also deals with theconditions which may lead to incapacity and with the attitude of the courts to theevidence about a person’s will-making capacity, who gives that evidence andwhen and how they formed their opinions about the evidence.

Testamentary capacity [will-making capacity]is one of those mentalfunctions that cross the legal and medical domains. It is both a legalconcept and a specific focus of medical assessment. This blurring can causeconsiderable difficulties in the Courts. Challenges are made on a legal basisyet evidence can be dependent upon expert psychiatric or medicalassessment. Furthermore, on an international level, testamentary capacity isone of the few capacities that is almost entirely dependent on case lawwithout much statutory direction.2

This quotation from an important article by two Canadian psychiatrists and alawyer reflects part what we are attempting to do in this chapter. We describe thelaw relating to will-making capacity, derived mostly from the decided casesspanning the 19th to 21st centuries, and the increasing understanding of that matterfrom the medical perspective. We also set out how lawyers should act so as toensure that their clients make valid wills thereby protecting their clients’ rights todistribute their assets according to their own wishes. We deal with how healthprofessionals, acting as experts, can contribute appropriately and effectively to thatprocess.

1 Roman G.C., Managing Vascular Dementia, London, Science Press, 2003, p1 .2 Shulman,K, Cohen, C and Hull, I, “Psychiatric issues in retrospective challenges of testamentarycapacity” Int J Geriatr Psychiatry, (2005) 20: 63-69, 64.

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We have already noted that we call testamentary capacity “will-making capacity”in this chapter. We also call a testator or testatrix a “will-maker”; however we donot change those terms when they appear in any quotation from another source.

4. 2. The classic statement of the lawIn 1870, Cockburn CJ gave the judgment of the Court of Queens Benchcomprising himself, Blackburn, Mellor and Hannen JJ in Banks v Goodfellow.3 Init he laid down the test for will-making capacity which was adopted in Australiaand other common law countries and has been reaffirmed many times in the 20th

and 21st centuries.4 Cockburn CJ said in relation to the capacity or power to makea will that:

It is essential to the exercise of such a power that a testator shallunderstand the nature of the act and its effects; shall understand the extentof the property of which he is disposing; shall be able to comprehend andappreciate the claims to which he ought to give effect; and, with a view tothe latter object, that no disorder of mind shall poison his affections, perverthis sense of right, or prevent the exercise of his natural faculties - that noinsane delusions shall influence his will in disposing his property and bringabout a disposal of it which, if the mind had been sound, would not havebeen made.5

While Banks v Goodfellow continues to be a leading case, as will been seen morethan once in this chapter, the law moves on. Recent court decisions in Australiahave acknowledged the differences between the 19th century context and today.One example is Kerr v Badran which highlighted the differences between 1870and today on the issue of assets knowledge.6 In that case Windeyer J said:

In dealing with the Banks v Goodfellow test it is, I think, necessary to bearin mind the differences between life in 1870 and life in 1995. The averageexpectation of life for reasonably affluent people in England in 1870 wasprobably less than 60 years and for others less well off under 50 years: theaverage life expectancy of male in Australia in 1995 was 75 years.Younger people can be expected to have a more accurate understanding of

3 Banks v Goodfellow (1870) LR 5 QB 549.4 Hood J restated the test in Banks v Goodfellow in his own words in In the Will of Wilson (1897) 23 VLR197, 199-200. Knox CJ and Starke J treated the test as settled law in Bailey v Bailey (1924 34 CLR 558,566. The views of two current members of the High Court of Australia, Gleeson CJ and Kirby J are foundin Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, 290 and 295. See also Shorten v Shorten[2002] NSWCA 73 [54]; Theophanous v Gillespie [2001] QSC 177 [86]; Martin v Fletcher [2003] WASC59 [8]; Kerr v Bardan [2004] NSWSC 735 [48] and Trust Co of Australia Daulizio [2003] VSC 358 [133].Banks v Goodfellow was followed in Ontario in Murphy v Lamphier (1914) 31 OLR 287. For a long-standing US case, without the flowery language see, Cunningham v Stender 225 P. 2d 977 (1953).5 Banks v Goodfellow (1870) LR 5 QB 549, 565.6 [2004] NSWSC 735.

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the value of money than older people. Younger people are less likely tosuffer memory loss. When there were fewer deaths at advanced age,problems which arise with age, such as dementia, were less common. InEngland in 1870, if you had property it was likely to be lands or bonds orshares in railway companies or government backed enterprises. Investmentin ordinary companies was far less common than now. Older people livingtoday may well be aware that they own substantial shareholdings orsubstantial real estate, but yet may not have an accurate understanding ofthe value of those assets, nor for that matter the addresses of the real estateor the particular shareholdings which they have. Many people have handedover management of share portfolios and even real estate investments toadvisors. They might be quite comfortable with what they have; they mayunderstand that they have assets which can provide an acceptable incomefor them, but at the same time they may not have a proper understanding ofthe value of the assets which provide the income. They may however bewell able to distribute those assets by will. I think that this needs to be keptin mind in 2004 when the requirement of knowing “the extent” of the estateis considered. This does not necessarily mean knowledge of each particularasset or knowledge of the value of that asset, or even a particular class ofassets particularly when shares in private companies are part of the estate.7

In Banks v Goodfellow the jury had held, and the judges had agreed, that the will-maker, John Banks, was suffering from insane delusions. Nevertheless, hiscapacity and right to make a will was upheld. Cockburn CJ counseled:

No doubt, where the fact that the testator has been subject to any insanedelusion is established, a will should be regarded with great distrust, andevery presumption should in the first instance be made against it. Whereinsane delusion has once been shown to have existed, it may be difficult tosay whether the mental disorder may not possibly have extended beyondthe particular form or instance in which it manifested itself. It may beequally difficult to say how far the delusion may not have influenced thetestator in the particular disposal of his property. And the presumptionagainst a will made under such circumstances becomes additionally strongwhere the will is … one in which natural affection and claims of nearrelationship have been disregarded.8

Cockburn CJ went on to note that neither of the delusions that Banks sufferedfrom namely that he was pursued by spirits and that a man long since dead came tomolest him had “affected the general faculties of his mind, and could have noaffect upon the will” and held that there was “no sufficient reason why the testator7 Ibid. [49].8 Banks v Goodfellow (1870) LR 5 QB 549, 570.

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should be held to have lost his right to make a will, or why a will made underthese circumstances should not be upheld”.9

Consequently, Banks v Goodfellow not only lays down the test for will-makingcapacity, but also makes it clear that a partial unsoundness of mind, not affectingthe person’s general faculties and not operating on the person’s mind in regard to aparticular testamentary disposition, will not be sufficient to deprive the person ofthe power to dispose of their property in a will.10 For an example of a case of a“prolific” will-maker who was held to lack will-making capacity in relation to aparticular will because of an unfounded and irrational belief that was persistentlyheld despite overwhelming proof of its falsity, see Bull v Fulton.11 However, asGleeson CJ has pointed out, “the law treats as critical the distinction between mereantipathy, albeit unreasonable, towards one who has a claim, and a judgmentwhich is affected by disorder of the mind”.12

Banks v Goodfellow remains the leading case on capacity to make a will after 140years not only because of the common law’s reliance on precedent to ensureconsistency in the application of the law but also because of the lawyer’s love offlowery phrases which attract attention to the way the test is stated in that case.Nevertheless, the common law moves on in the light of new knowledge andunderstanding of medical and psychological matters. In a breakthrough casearising from a person developing a psychiatric condition as a result of shockcaused by an accident at work, Windeyer J noted “Law marching with medicinebut in the rear and limping a little….”13 Earlier, in a leading case on will-makingcapacity, Timbury v Coffee, a case of a will-maker who drank himself into a stateof physical exhaustion and mental disturbance, Dixon J noted that:

We are not bound to go on applying views held over a century ago aboutmental disturbance and insanity and to disregard modern knowledge andunderstanding of such conditions.14

It has been suggested recently that the law is limping too far behind medicine inrelation to the assessment of will-making capacity.15

9 Ibid.pp. 570-571. For an application of this point in Australia see, Tipper v Moore (1911) 13 CLR 248.For a more recent case in which views were held to be “not simply harsh, unfair or unjust … but passedinto the realm of paranoid delusion”, see Grynberg v Muller; Estate of Bilfeld [2001] NSWSC 532, [65].

10 Ibid. p. 556.711 (1942) 66 CLR 295.12 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, 290. See also Weschler v Du Maurier[2002] NSWCA 13 and Di Cecco v Contini [2004] VSC 211.13 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 395.14 (1941) 66 CLR 277, 284. See also Re Estate of Griffith (1995) 217 ALR 284, 290-291.15 Shulman, Cohen and Hull,(2005) op. cit. (footnote 1), pp. 67-69.

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Some catching up was done in the English Court of Chancery in 2010 whenBriggs J stated the following:

Without in any way detracting from the continuing authority of Banks v.Goodfellow, it must be recognised that psychiatric medicine has come along way since 1870 in recognising an ever widening range ofcircumstances now regarded as sufficient at least to give rise to a risk ofmental disorder, sufficient to deprive a patient of the power of rationaldecision making, quite distinctly from old age and infirmity. The mentalshock of witnessing an injury to a loved one is an example recognised bythe law, and the affective disorder which may be caused by bereavement isan example recognised by psychiatrists…. 16

One of the expert witness psychiatrists in the case described the symptomaticeffect of bereavement as capable of being almost identical to that associated withsevere depression. Having noted this, Briggs J continued:

Accordingly, although neither I nor counsel has found any reported casedealing with the effect of bereavement on testamentary capacity, the Banksv. Goodfellow test must be applied so as to accommodate this, among otherfactors capable of impairing testamentary capacity, in a way in which,perhaps, the court would have found difficult to recognise in the 19th

century.17

4. 3. The present day requirements for will-making capacityWill-makers must be of sound mind, memory and understanding to make a validwill. What is required of them is that they:

1. understand the nature and effect of a will;2. know the nature and extent of their property18;3. comprehend and appreciate the claims to which they ought to give

effect; and4. are not affected delusions that influence the disposal of their assets at

the time they are making their will.

Clearly, these basic elements, derived from Banks v Goodfellow, have notchanged. However, the way in which we apply these elements to the determinationof will-making capacity has changed. Our understanding of conditions such asdementia - which predominates as the leading cause of mental disturbanceinterfering with will-making capacity today – has evolved. In particular, ourunderstanding of the ways in which such conditions impact on a person’s ability to

16 Key & Anor v Key & Ors [2010] EWHC 408 (Ch) [95]. Also reported as Re Key [2010] 1 WLR 2020.17 Ibid.18 Note the effect of the approach in Badram v Kerr [2004] NSWSC 735 [49] on this requirement.

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know, comprehend and appreciate has become more sophisticated and complex, aswill be discussed in this chapter.

Sometimes the question arises, did the will-maker lose their will-making capacitybetween the time they gave instructions for the will and when they signed the will?That issue has been settled since 1883 by the courts in England and Australiataking the following approach. If the will-maker had will-making capacity whenthey gave instructions for the will and believed that the will, as drafted, reflectedthose instructions, and that was true as a matter of fact and they executed the willin that belief, the will was valid and would be admitted to probate.19

In 2010, a unanimous England and Wales Court of Appeal confirmed thatapproach.20 In that case, Moore-Bick LJ pointed out that unless there was reason toquestion it, proof of will-making capacity and the execution of the will weresufficient to establish knowledge and approval of its contents. Furthermore, itcould normally be accepted that a person of sound mind was capable of disposingof their property and intended to do so in the manner set out in the will.Consequently, in such cases it was irrelevant to enquire whether the will-makerlacked capacity at the time when they gave the instructions, whether thoseinstructions continued to reflect their intentions or whether they realised that thewill gave effect to those instructions. It is enough that the will-maker was capableof making the decision at the time they executed the will document.

However, he went on to state that where a will-maker loses some of their facultiesbetween giving instructions and executing the will, the position is different. Hecontinued:

One must then ask (i) whether at the time [the will-maker] gave theinstructions he had the ability to understand and give proper considerationto the various matters which are called for, that is, whether he had [will-making] capacity, (ii) whether the document gives effect to his instructions,(iii) whether those instructions continued to reflect his intentions and (iv)whether at the time he executed the will he knew what he was doing andthus had sufficient mental capacity to carry out the juristic act which thatinvolves. If all those questions can be answered in the affirmative, one canbe satisfied that the will accurately reflects the deceased's intentions formedat a time when he was capable of making fully informed decisions.21

19 Parker v Felgate (1883) LR 8 PD 171; Re Crooks (Estate); Ackerman v Brown (BC9403413)(unreported, Supreme Court of NSW, Young J, 14 December 1994); Perrins v Holland [2010] EWCA Civ840, [2011] 2 All ER 174.20 Perrins v Holland [2010] EWCA Civ 840, [2011] 2 All ER 174.21 Ibid. [55].

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In the opinion of Moore-Bick LJ, that was what Parker v Felgate decided.22

4. 4. The responsibilities of lawyers when taking instructions for and seeing tothe execution of wills where the will-making capacity of the will-maker is indoubtIn 1841 in the first edition of Jarman on Wills, Mr Jarman wrote, and it wasrepeated in all subsequent editions:

Few of the duties which devolve upon a solicitor, more imperatively callfor the exercise of a sound, discriminating, and well-informed judgment,than that of taking instructions for wills.23

He completed his Suggestions to persons taking instructions for Wills by referringthe “admonishing of professional gentlemen generally” of Sir John Nicoll in thePrerogative Court in 1822 that:

[W]here instructions for a will are given by a party not being the proposedtestator – a fortiori where by an interested party – it is their bounden duty tosatisfy themselves thoroughly, either in person or by the instrumentality ofsome confidential agent, as to the proposed testator’s volition and capacity– or in other words, that the instrument expresses the real testamentaryintentions of a capable testator – prior to its being executed ….24

In a 1962 case, In the estate of Tucker, Deceased, Mayo J of the Supreme Court ofSouth Australia warned against taking instructions to make a will by post.25 In thatcase Mr Tucker asked a trustee company to draw up a new will for him as heintended to marry a certain person. The will was drafted and returned to him forexecution after his marriage. Mr Tucker executed the will but did not marry.Inquiries made after his death showed that at the time he executed the will he wassuffering from delusions. He believed that someone was trying to poison him andhe was under the delusion that the beneficiary of that will had actually become hiswife. The trustee company did not seek probate of that will, but obtained probateof an earlier will. Mayo J noted the likelihood of this problem being avoided if alocal agent of the trustee company had been engaged to obtain instructions.26

In 1994 in New South Wales, Santow J set out some observations in the hope ofreducing the number of cases coming to the Supreme Court based on the lack of

22 Ibid. [56].23 Jarman on Wills, London, Sweet and Maxwell, 8th ed., 1951, Vol. 3, 2073.24 Ibid., p. 2077. Rogers v Pittis (1822) 162 ER 12, 18.25 [1962] SASR 94.26 Ibid., 102.

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will-making capacity of the will-maker.27 First, he confirmed that: “The essenceof a solicitor’s fiduciary obligation to a client is the unfettered service of thatclient’s interests”.28 He then noted the real possibility of a conflict of interest for asolicitor who receives instructions from an established client to prepare a will onbehalf of another person, particularly when the established client is to be aprincipal or major beneficiary under the will. He cautioned against acting for morethan one of the parties in these circumstances.29

Santow J went on to state that duty of a solicitor when taking instructions from “anobviously enfeebled testator, where testamentary capacity is potentially in doubt”is to take particular care “to gain reasonable assurance as to the testamentarycapacity of the testator”.30 He noted that “any suggestion that someone, potentiallyinterested has instigated the will, whether or not a client of the will draftsperson,should particularly place the solicitor concerned on the alert”.31 Caution in such asituation is well advised. In Chapter 2. 2 and 2. 3. 1. we have discussed how theprocurement of a will – or indeed any legal document - in such circumstances maybe an indicator of influence, particularly if the will-maker is cognitively impaired.

Although Sir John Nicoll, Jarman and Mayo J refer to the possibility of usingagents, Santow J suggested that the solicitor who is to draft the will should attendthe will-maker personally. The solicitor should question the will-maker fully todetermine their capacity with the questions directed to ascertain whether the will-maker understands that they are making a will, what the effect of a will is, theextent of the property they are disposing of and the claims to which they ought togive effect – in other words the Banks v Goodfellow test.32

Santow J also suggested that the solicitor should arrange for one or two otherpeople to be present who have been chosen for “their calibre as witnesses” as tothe will-maker’s capacity should that issue be raised later. No one else should bepresent except with the consent of the will-maker. Where possible, one of thesewitnesses should be a doctor, one who has been treating and is familiar with thewill-maker.33

27 Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [142]-[148]. Wills Probate andAdministration Service (NSW), Butterworths (looseleaf) [10,019] and [13,041].28 Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [143].29 Ibid., [144].30 Ibid., [147].

31 Ibid.

32 (1870) LR 5 QB 549 and Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [147].33 Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [147].

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Santow J suggested that this doctor too should question the will-maker in detail,thoroughly examine the will-maker’s condition, and advise the solicitor as to thecapacity and understanding of the will-maker.34

There is a developing expectation that if doctors are asked to act as witnesses tothe signing of significant documents such as wills, they will go beyond justobserving the person signing the document and assure themselves that the personunderstands the nature of the document they are signing and its consequences.Although the Medical Board of Victoria did not find that a doctor engaged inunprofessional conduct when he acted as a witness without conducting adequateinquiries to ascertain whether a 91 year old man with dementia had capacity toexecute a statutory declaration, they were very critical of him and stated thefollowing:

It reflects ill on the practitioner and on the profession of medicine if adoctor is privy to, and a facilitator of, persons signing documents, to theirpotential disadvantage, when they are unable to do so with any realunderstanding of what they are doing. This is especially so if the personsigning documentation is a medical practitioner’s current patient. In theopinion of all members of this Panel, it is the responsibility of medicalpractitioners in the current environment to take modest steps to assurethemselves that they and their profession are not being manipulated orabused in the context of the witnessing of important documentation.35

Santow J advised that the solicitor should take a detailed written record of whattook place. The doctor should record the results of the medical examination andthe others present should take notes.36

Santow J went on to state in a sentence intentionally containing a double negative:

If after careful consideration of all the circumstances the solicitor is notsatisfied that the testator does not have testamentary capacity he shouldproceed and prepare the will.37

However Santow J subsequently qualified that opinion with the followingstatement:

If those questions and the answers to them, leave the solicitor in real doubtas to what should be done, other steps may be desirable. This may include

34 Ibid.35 Re: Dr Athanasios Gouras [2004] MPBV 10, [75].36 Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [147].37 Ibid.

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obtaining a more thorough medical appraisal or, if the testator declines,considering whether the will can be properly drawn, should assurance ontestamentary capacity fail to satisfy the test just quoted.38

He also recommended that the “good general practice” that the solicitor who tookthe instructions to draw the will should be present when the will-maker executesthe will should be followed in these circumstances, that the witnesses attesting thewill should be chosen from those present when the instructions were taken andthat detailed notes of the events that occurred and the discussions that took place atthat time should be made.39 In 1977 Templeman J (later Lord Templeman of theHouse of Lords) in the Chancery Division noted that the making of a will of an oldand infirm will-maker “ought to be witnessed and approved by a medicalpractitioner who satisfies himself as to the capacity and understanding of thetestator and makes a record of his examination and findings”.40

In the Manitoba Court of Queen’s Bench in 1985, Kroft J took a strong and clearposition on the role of solicitors in relation to will-making by weak and ill peopleat the end of their lives.41 He “garnered” “basic rules” from Banks v Goodfellowand subsequent Canadian cases noting the following in particular:

The duty of a solicitor taking instructions for a will is always a heavy one.When the client is weak and ill, and particularly when the solicitor knowsthat he is revoking an existing will, the responsibility will be particularlyonerous.

A solicitor cannot discharge his duty by asking perfunctory questions,getting apparently rational answers, and then simply recording in legal formthe words expressed by the client. He must first satisfy himself that truetestamentary capacity exists, that the instructions are freely given, and thatthe effect of the will is understood.42

Santow J also suggested that that it may be appropriate for the Law Society ofNew South Wales to give guidance to solicitors as to what was professionalconduct in these circumstances. In 2009, the Society published, “A Practical Guideto Solicitors: When a client’s capacity is in doubt”.43 It noted that it was not the

38 Ibid. [148].39 Ibid. [147].40 In re Simpson (1977) Sol Jo 224. Kerridge notes this as an English “golden rule” but also notes that itappears to have been applied in England only in cases in which the will-maker was obviously and severelyincapacitated. See, Kerridge, R, “Willls made in Suspicious Circumstances: the Problem of the VulnerableTestator” (2000) Cambridge L J 310, 312-313.41 Freisen and Holmberg v Freisen Estate (1985) 33 Man R (2d) 98.42 Ibid. 107.43 www.lawsociety.com.au.

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responsibility of a solicitor to be an expert in capacity assessment of their client.However, they could be involved in carrying out a “legal” assessment of theirclient’s capacity and suggested that this involves:

1. making an initial, preliminary assessment of capacity involving lookingout for warning signs and using basic questioning and assessment of theclient,

2. if doubts arose, seeking a clinical consultation or formal evaluation of theclient’s capacity by a clinician with expertise in cognitive capacityassessment,

3. making a final, legal judgment about capacity for the particular decisionor transaction.44

In the 2009 case Nicholson v Knaggs, Vickery J of the Supreme Court of Victoriarecommended a “considered and appropriately structured interview with thetestatrix” and emphasized:

in order to establish knowledge and approval of a will by a testator, more isrequired than merely establishing that the testator executed it in thepresence of a witness after it had been read to or by him 45

Vickery J also referred to the 1955 High Court decision, Boreham v Prince HenryHospital in which the Court noted the well accepted proposition that a will madein “advanced age” is “always carefully scrutinised by the court” and thencontinued:

The proper approach of the Court to the question whether a testator hastestamentary capacity is clear. Although proof that a will was properly

44 A Practical Guide to Solicitors: When a client’s capacity is in doubt. www.lawsociety.com.au, p 1.For anexample of good practice see, Nichoson v Knaggs [2009] VSC 64 [581]-[582] and for poor practice see thepreparation of the December 2000 codicil and 2001 will in that case. See also Re Ellul dec,d; Ellul v Ellul[2004] VSC 351 as an example of the steps that should be taken to ensure that a person whose will-makingcapacity is in doubt and who needs an interpreter to help them give instructions and to understand thecontents of their will to make a valid will. For criticism of a solicitor for complicating the way in whichthe gifts to the beneficiaries was expresses and for just giving the will to the will-maker to read and notreading it aloud to them see, Robinson v Spratt [2002] NSWSC 426, [30] and [31]. See also Challen v Pitt[2004] QSC 365 as an example of what happens when the final will of an elderly person, possibly withdementia, who has made a number of wills later in life, is challenged. In that case, the solicitor believedthat the will-maker was elderly, physically disabled but mentally alert when she gave the instructions forand executed the will. The judge preferred the contemporaneous evidence of capacity which came fromvarious sources to the retrospective diagnosis of the specialist and upheld the will finding no suspiciouscircumstances at the time of its execution.

45 Nichoson v Knaggs [2009] VSC 64, [581]-[582] and [664]

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executed is prima facie evidence of testamentary capacity, where theevidence as a whole is sufficient to throw a doubt upon the testator'scompetency, the Court must decide against the validity of the will unless itis satisfied affirmatively that he was of sound mind, memory andunderstanding when he executed it or, if instructions for the will precededits execution, when the instructions were given.46

Vickery J then pointed out that while the approach in such cases was to scrutinisethe evidence more closely than is usual in the course of reaching a decision on thebalance of probabilities, the High Court was not imposing a higher standard ofproof. The standard remains that of affirmative satisfaction on the balance ofprobabilities. The High Court was indicating that what was required was that theevidence as a whole was considered but with a degree of caution to be appliedwhen considering each of the factual issues that was under scrutiny. For example,was the will-maker’s soundness of mind an issue and what did the evidence show?The same approach was to be applied to the will-maker’s memory or to theirunderstanding of what they were doing when they gave instructions for orexecuted the will, if those matters arose as issues, then the standard of proof wouldbe applied to that evidence47

While the presumption of capacity remains in place when elderly people aremaking or changing wills, particularly if they are frail or unwell or showing signsof confusion or dementia, we suggest that the courts will now expect solicitors toobtain expert advice on the question of the person’s capacity to make or change awill. We also suggest that solicitors will be expected to place more reliance on thatadvice than on their own assessment of their client’s will-making capacity.Consequently, we suggest that it may no longer be appropriate to rely on SantowJ’s advice that; “if after careful consideration of all the circumstances the solicitoris not satisfied that the testator does not have testamentary capacity he shouldproceed and prepare the will” unless they have intimate and both recent and long-term knowledge of their client and their capacity. Nevertheless, we acknowledgethat it remains up to solicitors to make the ultimate judgment themselves abouttheir client’s will-making capacity. We also note that the judges appear to prefercontemporaneous evidence of capacity to retrospective diagnoses of specialists,particularly if the solicitors have adopted practices recommended in the guidereferred to above.48

Our confidence in our suggestion was enhanced in 2010 by the English Court ofChancery by the case of Key & Anor v Key & Ors in which Briggs J noted that a

46 (1955) 29 ALJ 179, 180, (No medium free citation)47 Nicholson v Knaggs [2009] VSC 64, [93]-[94].48 For examples of good and bad practise see, Nichoson v Knaggs [2009] VSC 64. See also, Challen v Pitt[2004] QSC 365.

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solicitor accepted instructions for the preparation of a will from an 89 year oldwill-maker whose wife of 65 years' standing had been dead for only a week. Thesolicitor did so without taking any proper steps to satisfy himself of the will-maker’s will-making capacity, and “without even making an attendance note of hismeeting with [the will-maker and one of his daughters who became a majorbeneficiary as a result of the new will], at which the instructions were taken”.49

Briggs J described this as a failure to comply with the “Golden Rule” which hedescribed as follows:

The substance of the Golden Rule is that when a solicitor is instructed toprepare a will for an aged testator, or for one who has been seriously ill, heshould arrange for a medical practitioner first to satisfy himself as to thecapacity and understanding of the testator, and to make a contemporaneousrecord of his examination and findings.50

Briggs J went on to point out that the “Golden Rule” was not a rule of lawaffecting the validity of a will, but a recommendation for good practice. He said:

Compliance with the Golden Rule does not, of course, operate as atouchstone of the validity of a will, nor does non-compliance demonstrateits invalidity. Its purpose, as has repeatedly been emphasised, is to assist inthe avoidance of disputes, or at least in the minimisation of their scope. Asthe expert evidence in the present case confirms, persons with failing orimpaired mental faculties may, for perfectly understandable reasons, seek toconceal what they regard as their embarrassing shortcomings from personswith whom they deal, so that a friend or professional person such as asolicitor may fail to detect defects in mental capacity which would be orbecome apparent to a trained and experienced medical examiner, to whom aproper description of the legal test for testamentary capacity had first beenprovided.51

4. 5. The tendency to uphold the will-makers right to make a willWhile we doubt that Santow J’s advice to solicitors reflects the current position ofthe court in relation to the assessment of will-making capacity, it does reflect apolicy that appears to be implied in the common law namely that a person’s rightto make a will is to be upheld wherever it is legitimate to do so.52 Consequently, aperson who is the subject of a financial management order made by theGuardianship Tribunal of New South Wales will still be able to make a will,provided it can be proved that they had will-making capacity at the time they made

49 Key & Anor v Key & Ors [2010] EWHC 408 (Ch) [6]. Also reported as Re Key [2010] 1 WLR 2020.50 Ibid. [7].51 Ibid. [8].52 Re Estate of Griffith (1995) 217 ALR 284, 289-291(Gleeson CJ), 294-296 (Kirby P).

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the will, even though they may not enter into contracts or dispose of their propertyduring the time they are subject to a financial management order.53 Similarly, aperson who is the subject of a guardianship order made by the GuardianshipTribunal of New South Wales may still be able to make a will as the findings ofthe Tribunal have no effect on the person’s capacity to make a will.54

Nevertheless, the findings of the Tribunal may be admitted in evidence before theSupreme Court to be taken into account by it “to the extent of whatever rationalpersuasive power they may have”.55

A similar approach was taken in Victoria in relation to findings and decisions ofthe Guardianship and Administration Board there (now the Guardianship List ofthe Victorian Civil and Administrative Tribunal).56 Following the New SouthWales approach, a Full Court of the Supreme Court of Western Australia has beenheld that a person the subject of an administration order may still be able to makea will, but that for such a will to be given effect to it would be necessary to provethat the person had will-making capacity at the time they made their will.57 Wesuggest that this approach is consistent with the concept of task-specific capacitythat is that a person’s capacity to make a decision in one area or task (for examplewill-making) is distinct and separate, and therefore cannot be extrapolated, fromtheir capacity to perform another task (for example making decisions aboutlifestyle or finances).

Subject to any legislative provisions limiting or precluding those who are thesubject of administration orders making or varying wills or imposing restrictionson the circumstances in which a person the subject of a guardianship oradministration order may make or vary a will, there is no reason why the positiontaken by the Supreme Courts of New South Wales, Victoria and Western Australiawould not be followed in the other Australian jurisdictions.58 The South AustralianGuardianship Board is authorised to direct that a person the subject of aguardianship or administration order may make a will-making disposition onlyafter compliance with such precautions as the Board thinks fit to direct. 59 InWestern Australia however, a provision which may have been intended to give a

53 Perpetual Trustee Co v Fairlie-Cunninghame (1993) 32 NSWLR 377. See also s. 23A Protected EstatesAct 1983 (NSW).54 Re Estate of Bellew (unreported, Supreme Court of NSW, Windeyer J, 8 September 2005,BC200506913). For a US example see, In re Estate of Mayes 843 S. W.2d 418, 425-426 (1992).55 Ibid. For a recent case in which medical evidence before the NSW Guardianship Tribunal was held to beof little weight on the question of testamentary capacity see Revie v Druitt (unreported, Supreme Court ofNSW, McLelland J, 13 August 1992, BC9201679), p. 4.

56 Norris v Tuppen [1999] VSC 228. [66] and [339].57 Re Full Board of the Guardianship and Administration Board [2003] WASCA 268, [54], [55], [77]-[81],(2003) 27 WAR 475,.58 For a US authority see In re Estate of Mayes 843 S.W. 2d 418 (1992).59 S.56 of the Guardianship and Administration Act 1993 (SA)

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similar power to the State Administrative Tribunal has been held not to apply towills or other forms of testamentary instrument, for example codicils.60

As Powell J shows in Perpetual Trustee Co v Fairlie-Cunninghame, the courts andcommentators in England and Australia have long since held that the opinion thatthose with mental illnesses may be able to make wills during lucid periods. In anyevent their wills have no effect during their lifetime and the validity of such willsmay be tested before probate of them is allowed.61 The issue of lucid intervals iscomplex and is one area where the law lags behind medicine, as discussedbelow.62

In a subsequent case, Powell JA referred to many forms of mental disorder thatmay be relevant to the question of whether or not a will-maker had will-makingcapacity at the time they made their will. He referred to multi-infarct dementia,Alzheimer’s type dementia which is progressive but irreversible at present,delirium from alcoholism or other causes which may be reversed, at least to adegree. He also referred to forms of psychosis, including schizophrenia and bi-polar disorder, which may be controllable either substantially or to some degree byanti-psychotic medications.63 Many of the conditions he referred to are describedbelow together with their likely impact on a person’s will-making capacity.64

In Re Hodges; Shorter v Hodges, Powell J noted the opinion of a leadingpsychiatrist giving expert evidence that the cognitive changes brought about bydepression did not affect the person’s capacity to reason but affected the person’smotivation for action and held that a depressed person who shot himself soon aftermaking a will had will-making capacity when he made it.65

When a person has been prone to bouts of alcoholism the question has arisen as towhether or not they could make a valid will. In Landers v Landers a man hadtemporary beliefs described as absurd when affected by alcohol.66 The questionthat the High Court dealt with was put by Rich J as “whether the delusion allegedto exist in the mind of the testator when drunk was also present in his mind whensober”.67 As the evidence satisfied the court that the alleged delusion did not affect

60 Board of the Guardianship and Administration Board [2003] WASCA 268, [77] and [78], (2003) 27WAR 475.61 Perpetual Trustee Co v Fairlie-Cunninghame (1993) 32 NSWLR 377.62 See 4. 9. 3. 1. 2 below.63Shaw v Crichton (unreported, Court of Appeal NSW, Powell J, 23 August 1995), in Wills Probate and

Administration Service (NSW), Butterworths (looseleaf) [13,037].64 See 4. 9. 3 below.65 (1988) 14 NSWLR 698.66 Landers v Landers (1914) 19 CLR 222.67 Ibid. 236.

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the will-maker when he made his will, the High Court held that he had will-making capacity at that time. As already noted, Timbury v Coffee was a case of awill-maker who drank himself into a state of physical exhaustion and mentaldisturbance.68 In the intervals between the bouts he behaved in a reasonablemanner in most respects. Nevertheless, he developed an intermittent distrust ofand antagonism towards his wife. Even when apparently free from alcoholism, hesometimes recounted incidents relating to her that were improbable and, in somecases, inconsistent with the proven facts. He made four wills during intervalsbetween his bouts of alcoholism. The facts of the case were decided by a jury.The jury decided that he was not of sound mind, memory and understanding whenhe made his last will, but was in that state when he made his second last will. TheHigh Court did not interfere with the jury’s findings.

Advanced age does not of itself prove that the will-maker was incapable, evenwhen associated with serious illness. However, the will of such a person will becarefully scrutinized by the court.69 In 1924, in Bailey v Bailey the five membersof the High Court agreed on the principle, but disagreed as to whether the will-maker had capacity.70 The minority stated the principle as:

[G]reat age, while it necessarily excites the vigilance of the Court, does notof itself establish want of capacity.71

Mr Bailey was 88 and suffering from pneumonia when in 1923 he made what washis seventh will. He signed it with a mark as he was too ill to sign his name. Hedied three days later. The majority of the High Court upheld this will rather thanhis sixth will made in 1914.72 For a more recent example, see Re Estate ofBellew.73 In that case an unsigned will was accepted as the last will of an elderlywoman, aged either 88 or 90. She was suffering from a degree of dementia as wellas congestive heart failure and renal failure. She was also the subject of aguardianship order.One of the disadvantages of advancing age is the risk the onset of dementia. Thefact that a person has got dementia does not preclude them from making a will. Awill made by a woman when she had mild dementia was upheld in the SupremeCourt of Victoria in 1998.74 The key issue is the severity of the dementia andwhether it impaired insight, judgment and decision-making skills.75

68 (1941) 66 CLR 277.69 Bull v Fulton (1942) 66 CLR 295, 338.70 (1924) 34 CLR 558.71 Ibid., Knox CJ and Starke J, 560.72 Isaacs, Gavan Duffy and Rich JJ.73 Unreported, Supreme Court of NSW, McLelland J, 13 August 1992, (BC9201679).74 Re Brokenshire; Equity Trustees Co Ltd v Worts (1998) 8 VR 659.75 Norris v Tuppen [1999] VSC 228. A case in which probate of a will and codicils was refused on thegrounds that the will-maker did not have capacity to make a will.

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In a 2009 case, even though Vickery J of the Supreme Court of Victoria found, theevidence as a whole is sufficient to throw doubt upon the competency of the will-maker, he was positively satisfied that she was of sound mind, memory andunderstanding when she executed her1999 will and her March 2000 codicil. Henoted that:

[A]t the time when she gave her instructions for those instruments, sheknew what she was doing, and she understood the effect of the principalclauses in the will; she had a general knowledge of the nature of herproperty and that it was an estate of significant value; and sheacknowledged the friends and relatives who she ought to have considered atthe time.76

Although Vickery J found that by mid-1999 the will-maker was suffering fromcognitive impairment characteristic of the pre-dementia stage of Alzheimer’sdisease and remained in that condition in March 2000, that degree of mentalimpairment did not necessarily preclude her from having will-making capacity asdefined in law, and that it did not have that effect in either 1999 or March 2000.77

However, he was affirmatively satisfied that by December 2000 and in 2001 shewas not of sound mind, memory and understanding. Consequently, the December2000 codicil and the 2001 will were not valid and were set aside.78

Further, Vickery J provided another basis for supporting the right of will-makersto make wills even if they cognitive disabilities. He referred to Article 12(2) of theConvention on the Rights of Persons with Disabilities 2006 which Australia hasratified and which is in force. Vickery J noted that in the context of will-making,the Convention provided for “an obligation on Australia to recognise that personswith disabilities enjoy the exercise of the right to freedom of testamentarydisposition on an equal basis with all other persons”.79

4. 6. Proving a will is valid – the onus of proof and who has itMost wills are not contested and the executor will obtain the permission of theSupreme Court to distribute the estate, that is the real and personal property of thewill-maker who has died. This is done by a process called seeking probate of thewill in common form. If the will is contested, the process is to seek a grant ofprobate from the Court in “solemn form”. The effect of such a grant of probate isthat it is binding on all the parties to the court action and everyone else, subject to

76 Nichoson v Knaggs [2009] VSC 64, [584].77 Ibid. [580] and [583].78 Ibid. [668]-[670].79 Nichoson v Knaggs [2009] VSC 64, [75].

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certain exceptions.80 Usually the executor, but sometimes another person, appliesto the Supreme Court for a grant of probate in solemn form. Whoever does so issaid to “propound” the will. They bear the onus of proving that the will is thevalidly made and valid last will and testament of the will-maker. This onus ofproof, which is to the civil standard of balance of probabilities, remains with themuntil the end of the process.81 Even though during the process the onus may shiftto a party alleging that the will should not be admitted to probate to show why itshould not be so admitted, the ultimate responsibility of satisfying the Court thatthe will should be admitted to probate lies with the applicant.82 However, where awill is rational on its face and duly executed, there is a presumption that the will-maker had will-making capacity. Nevertheless, that presumption is rebuttable andthe legal onus remains with those “propounding” the will.83

That part of the test relating to the will-making capacity of the will-maker wasrestated in 1995 by Gleeson CJ, when he was still Chief Justice of New SouthWales, as follows:

Where the evidence in a suit for probate raises a doubt as to testamentarycapacity, there rests upon the plaintiff the burden of satisfying theconscience of the court that the [will-maker] had such capacity at therelevant time. If, following a vigilant examination of the whole of theevidence, the doubt is felt to be substantial enough to preclude a belief thatthe [will-maker] was of sound mind, memory and understanding at the timeof execution of the will, probate will not be granted.84

In a 2010 case, Briggs J of the English Court of Chancery stated the burden ofproof “rules” for will-making capacity even more plainly but using the legalterminology of “testamentary capacity” and “propounder”. He said:

The burden of proof in relation to testamentary capacity is subject to thefollowing rules:

80 . Wills Probate and Administration Service (NSW) op. cit. [6061].81 Bailey v Bailey (1924) 34 CLR 558, 570-572. Re Hodges; Shorter v Rogers (1988) 14 NSWLR 698, 704-707.82 Bailey v Bailey (1924) 34 CLR 558, 571.83 Shorten v Shorten [2002] NSWSCA 73, [54].84 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, 289; Worth v Clasohm (1952) 86 CLR 439.For an example of a will-maker who was the subject of an administration order in Queensland not meetingthe test for testamentary capacity because of dementia see, Re will of Pill [2001] QSC 447. For an exampleof a case applying the relevant principles but in which evidence pointing to a lack of testamentary capacitywas not offset by evidence indicating that the will-maker had testamentary capacity at the time she madeher last will see, Public Trustee (WA) v Churches of Christ Homes and Community Services Inc [2005]WASC 289. For a case applying the test for capacity in which the evidence of a doctor raised a doubt aboutthe capacity of the will-maker, but a doubt not substantial enough to preclude a finding of testamentarycapacity see, Seale v Cross [2003] WASC 237.

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1. While the burden starts with the propounder of a will to establishcapacity, where the will is duly executed and appears rational onits face, then the court will presume capacity.

2. In such a case the evidential burden then shifts to the objector toraise a real doubt about capacity.

3. If a real doubt is raised, the evidential burden shifts back to thepropounder to establish capacity nonetheless.85

4. 7. Proving a will –suspicious circumstances and undue influenceWhen people with cognitive deficits suddenly makes their first will or a new willbenefitting those who have played a role in getting the will made, thesecircumstances will be treated as suspicious with implications for those wishing toprove that a will made in these circumstances was valid.

Experience has shown suspicious circumstances and undue influence beingexerted on the will-maker are often linked. In a 1968 case Scarman J claimed thatLord Penzance, a famous English judge of the second half of the 19th century, hadonce said that the issues of will-making capacity, knowledge and approval, undueinfluence and fraud very often merged into one another.86 Where a person was old,ill and feeble and has cognitive deficits or is a person with acquired brain damage,psychiatric condition or intellectual disabilities reducing their capacity toappreciate what they are doing and make decisions, they were sometimesencouraged by unscrupulous family members or “new found friends” to makewills in their favour.87 Getting the person to make a new will favouring peoplewho would not normally have a claim to the person’s bounty or to givedisproportionate benefits to one such claimant over other claimants are twocommon ways among the myriad of ways in which vulnerable, cognitivelyimpaired individuals can be taken advantage of. Such wills can be challenged butonly after the death of the will-maker when probate of their will is being sought sothat their estate can be distributed to the beneficiaries. Gifts made during life timeare treated differently and are dealt with in Chapter 3.

One approach is to allege suspicious circumstances another is to claim undueinfluence in the will-making process. Despite the fact that they may arise from thesame fact situations, they are treated differently by the courts.

85 Key & Anor v Key & Ors [2010] EWHC 408 (Ch) [97]. Also known as Re Key [2010] 1 WLR 2020.86 In the Estate of Fuld (dec’d) [1968] P 675, 722.87 For a clear but ultimately unsuccessful attempt of “friends” to obtain a will from an elderly, moribundman see, Willmott v Mc Court [2002] WASC 210.

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4. 7. 1. Suspicious circumstancesThere are no restrictions on the factual situations which may constitute suspiciouscircumstances. Wherever a well-grounded suspicion is raised, those who wish toprove that the will is valid must remove the suspicion.88 The whole will is of noeffect if they fail to do so.89 The principles to be applied in suspiciouscircumstances cases are clear and have been authoritatively stated by the HighCourt.90 Adapting the words of Isaacs J, these can be summarized as follows:

1. where there are no circumstances exciting suspicion that the will-makermay not have fully known or approved the provisions of the will, the mereproof of the will-maker’s capacity and of the fact of the due execution ofthe will creates an assumption that will-maker knew of and assented to itscontents,

2. where any suspicious circumstances exist, the assumption does not arise,and the proponents have the burden of removing the suspicion by provingaffirmatively by clear and satisfactory proof (on the balance ofprobabilities) that the will-maker knew and approved of the contents of thewill,

3. a probate court’s suspicion will be aroused if the person who wrote orprepared the will is to take a benefit under it. It will be expected toundertake a vigilant and anxious examination of the evidence as to the will-maker's appreciation and approval of the contents of the will,

4. where a probate court is not satisfied that the will does contain the realintention of the will-maker, the court is bound to find that the will is notentitled to probate,

5. however, this ‘rule’ goes no further than requiring vigilance in seeing thatthe case is fully proved. It does not introduce a disqualification,

6. nor does it require, as a matter of law, any particular species of proof tosatisfy the onus of proof on the applicant to the court,

88 Tyrrell v Painton [1894] P 151, 159-160.89 Ridge, P “Equitable undue influence and wills” (2004) 120 Law Quarterly Review 617,625. Her articledeals with the detailed equitable rules about suspicious circumstances and notes that there is authority forthe proposition that if the circumstances surrounding the execution of a will raise issues of undue influenceand fraud, they cannot be alleged as suspicious circumstances (at 623). See also Kerridge, R “Wills made insuspicious circumstances: the problem of the vulnerable testator” (2000) 59 Cambridge Law Journal 310.90 Nock v Austin (1918) 25 CLR 519, [1918] HCA 73. See also, Tyrrell v Painton [1894] P 151 and Roos vKarpenkow (1998) 71 SASR 497, [1998] SASC 7228..

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7. also, the requirement that suspicion must be cleared away does not create 'ascreen' behind which fraud or dishonesty may be relied on without pleadingthem specifically when bringing the application.91

If the suspicious circumstances, whatever their nature, are not dispelled, the willwill not be not admitted to probate.92 It is only when suspicion is removed byproof that the will-maker knew and approved of the contents of the will that theonus is thrown on those who oppose the will to prove the fraud or undue influence,or whatever else they rely on to displace the case made for proving the will.93 Atthis point it is likely that, even though the will-maker is considered to havecapacity, often as a result of the common law’s policy of upholding a person’sright to make a will despite weakening capability set out in 4. 5 above, there willbe substantial evidence of the will-maker’s decline or long-time low capacity tomake a will and evidence giving rise the possibility of undue influence.

4. 7. 2. Undue influenceThe most succinct description of undue influence in relation to will-making wasgiven by Sir James Hannen P in 1885 as follows:

To be undue influence in the eye of the law there must be – to sum it up ina word – coercion.94

A few lines later he continued:

It is only when the will of the person who becomes the testator is coercedinto doing something he or she has no desire to do, that it is undueinfluence.95

Hood J of the Supreme Court of Victoria was similarly succinct when in 1897 hesaid:

To constitute undue influence there must be coercion or pressure, so as tooverpower the volition of the testatrix; there must be some substitution ofanother mind for hers.96

91 Nock v Austin (1918) 25 CLR 519, 528.92 For cases in which suspicious circumstances were not dispelled and the will was declared invalid see,Tyrrell v Painton [1894] P 151, Freisen and Holmberg v Freisen Estate (1985) 33 Man R (2d) 98, Slater vChitrenky [1981] 4 WWR 421 and Michaud v Poirier [1944] SCR 152.93 Tyrrell v Painton [1894] P 151, 157. For an example of a woman with cognitive impairmentcharacteristic of the pre-dementia stage of Alzheimer’s disease being found competent to make94 Wingrove v Wingrove (1885) 11 PD 81, 82. For an example of where there was held not to be proof ofundue influence in this legal sense of the term see, Baudains v Richardson [1906] AC 169.95 Ibid.96 In the will of Wilson (1897) 23 VLR 197, 198-199.

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In 1868, Sir J.P. Wilde (later Lord Penzance) had been more discursive. He notedthat to make a valid will the will-maker must be a free agent, but that not allinfluences were unlawful. He continued:

[P]ressure of whatever character, whether acting on the fears or the hopes,if so exerted as to overcome the volition without convincing the judgment,is a species of restraint under which no valid will can be made. Importunityor threats, such as the testator has not the courage to resist, moral commandasserted and yielded to for the sake of peace and quiet, or of escaping fromdistress of mind or social discomfort, these, if carried to a degree in whichthe free play of the testator’s judgment, discretion or wishes is overborne,will constitute undue influence, though no force is either used orthreatened.97

In 2003 in the Supreme Court of Queensland, and relying on late 20th centuryauthority, Jones J said:

Where a will, apparently regularly executed, by a person of competentunderstanding is challenged on the ground of undue influence the burden ofestablishing that its execution was so influenced lies on the person makingthe assertion.

To succeed in this … the defendant must prove the following:-(a) that the plaintiff had the capacity to influence the complainant;(b) the influence was exercised;(c) its exercise was undue(d) its exercise brought about the transaction.98

The standard of proof is always on the balance of probabilities. However, thestrength of the evidence necessary to establish a fact or facts on the balance ofprobabilities may vary according to the nature of what it is sought to prove.99 Meresuspicion on behalf of a disappointed potential beneficiary, without more, is not

97 Hall v Hall (1868) LR 1 P & D 481, 482.98 Johnston v Johnston [2003] QSC 075, [28] and [29], Winter v Crichton (1991) 23 NSWLR 116,121-122and Bank of Credit and Commerce International v Aboody (1990) 1 QB 923, 967.99 Neat HoldingsPty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 110 ALR 449, 450 followingDixon J’s approach in Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336, 362, namely that “itis enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. Butreasonable satisfaction is not a state of mind that is attained or established independently of the nature andconsequence of the fact or facts to be proved. The seriousness of an allegation made, the inherentunlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from aparticular finding are considerations which must affect the answer to the question whether the issue hasbeen proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" shouldnot be produced by inexact proofs, indefinite testimony, or indirect inferences”.

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sufficient to suggest that the will-maker was overcome by undue influence.100 Inmany cases those alleging undue influence will have to rely on circumstantialevidence to prove it. This is because the source of the best evidence on the matter,the will-maker, is already dead, and those against whom the undue influence isalleged will usually deny it.

The accepted position used to be, and may still be in New South Wales, that, if theevidence relied upon was circumstantial, it was not sufficient to show that thecircumstances surrounding the execution of the will were consistent with thehypothesis that the will was obtained by undue influence. It had to be shown thatthe circumstances were also inconsistent with a contrary hypothesis.101 In a 2009decision, Vickery J of the Supreme Court of Victoria criticised that standard ofproof stating that:

[It] imports a formidable standard of proof and imposes a significantconstriction on the capacity of the principle to provide an effective remedyin cases where testamentary undue influence may arise. It not only goesbeyond the accepted civil standard of proof applied in Australia in casessought to be made out by circumstantial evidence, but the formulationequates to the criminal standard, and arguably even goes beyond thatstandard.102

Following the well established Australian position that the standard of proof incivil cases is always proof on the balance of probabilities, Vickery J said thatwhere an allegation of undue influence required a probate court to draw aninference from circumstantial evidence, the court must be satisfied that thecircumstances raised a more probable inference in favour of what was alleged thannot, after the evidence on the question had been evaluated as a whole.103 Vickery Jwent on to point out:

An allegation of testamentary undue influence is a serious matter withpotentially significant consequences for the expression of the will of atestator and for the testamentary dispositions made under it. Further, theexercise of undue influence in a testamentary context may also be regardedas an inherently unlikely event in the circumstances of most cases.Expectant beneficiaries do not ordinarily put pressure on elderly testators inan endeavour to change their minds against their will. Bearing these mattersin mind, in the assessment of the evidence which has been marshaled insupport of the allegation made in this case, and in arriving at the ultimate

100 Green v Critchley [2004] QSC 022 [19]. See also Re Ellul dec’d; Ellul v Ellul [2005] VSC 351.101 Boyse v Rossborough (1857) 10 ER 1192, 1212; In the Will of Boyd (1872) VLR (I, E & M) 46, 48..102 Nichoson v Knaggs [2009] VSC 64, [119].103 Ibid. [127].

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conclusion, I adopt and apply the approach of Dixon J in Briginshaw vBriginshaw and the majority in Neat Holdings Pty Ltd v Karajan HoldingsPty Ltd.104

While it is suggested that Vickery J has stated the test correctly in terms of the lawon the standard of proof in civil cases in Australia, it should be noted that theestablished position in New South Wales, based on the 19th century Englishauthority, is that to succeed with a claim for undue influence, the applicant has toprove the actual coercion. Undue influence cannot be inferred; consequentlyevidence of circumstances consistent with coercion, but not amounting to proof ofcoercion, is not enough.105 As Windeyer J pointed out in Revie v Druitt, it isdifficult to prove undue influence:

It is generally recognized that it is extremely difficult to prove undueinfluence. The person who could give the best evidence is dead. That doesnot mean that it is impossible to establish undue influence, although I knowof no case in New South Wales where the issue has been successfullyraised.106

In its 1986 report, “Wills: Execution and Revocation” the New South Wales LawReform Commission noted that the strict law of probate, under which undueinfluence cannot be inferred, permitted if not encouraged pressure, particularly onthe old and feeble and that this had led one of its consultants to suggest thatequitable principles, including presumptions of influence, should be introducedinto the law of wills. 107 The Commission did not recommend either way on thismatter and the law has not yet been changed by either the judges or the parliament.Nevertheless, concerns still remain that some will-makers die having made willsthat do not represent their true intentions and which cannot be rectified after theirdeath. 108

4. 7. 3. The role of the expert in the assessment of undue influenceFirst, it must be understood that undue influence and lack of capacity to make thechallenged will are mutually exclusive. For a court to make a finding of undueinfluence, it must first have found that the person possessed the capacity to make awill.109 Deciding which is the predominant issue in the legal challenge, lack ofcapacity to make a will or undue influence, is the work of the lawyers running the

104 Ibid. [130].105 Winter v Crichton (1991) NSWLR 116, Powell J at 122 referring to Wingrove v Wingrove (1885) LR 11PD 81, 82 and Boyse v Rossborough (1857) 10 ER 1192, 1212106 Revie v Driutt [2005] NSWSC 902, [54].107 NSW Law Reform Commission Report 47, Wills: Execution and Revocation , Sydney, GovernmentPrinter, 1986, 8.34.108 Ridge, op cit (footnote 72) 638 and Kerrige op cit (footnote 72).109 As an example see, Nichoson v Knaggs [2009] VSC 64.

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case, but that decision is likely to be made in the light of the report provided by theclinician expert.

Second, the clinician expert’s evidence should deal with the question of the will-maker’s vulnerability to undue influence. It is for the court to decide whetherinfluence was exercised or not. To that end, a recent international task force hasoutlined the kind of risk factors that make a will-maker vulnerable to undueinfluence.110 These include:

1. Relationship risk factors namely, “confidential” or close relationshipsbetween vulnerable will-makers and a range of family members, friends,associates or carers.

2. Social or environmental risk factors such as dependency and isolation.

3. Psychological factors such as delirium; emotional vulnerability conferredby grief, loneliness, death bed situations and sexual bargaining; personalitytraits such as dependency, psychiatric illnesses such as depression,psychosis and anxiety, and cognitive impairment. With regards to cognitiveimpairment, Shulman et al’s threshold concept suggests that a will-makerwith only mild impairment of cognitive function has to be subjected to asevere level influence to the point of coercion or containment before thatinfluence would be considered undue. However, as the disease progressesto more severe dementia the person would be more susceptible to subtleinfluence. 111 This in turn must be tempered by an understanding of theperson’s individual pattern of cognitive deficits such that someone withonly mild cognitive impairment associated with frontal lobe deficits injudgment may be particularly susceptible to influence even though theirdementia is only mild.

4. Legal risk factors such as the procurement of the will by the beneficiarywho is favoured in the will, unnatural provisions which exclude naturalbeneficiaries, and a will which is inconsistent with previous wishes112:

110 The wills of older people: risk factors for undue influence.Peisah C, Finkel S, Shulman K, Melding P,Luxenberg J, Heinik J, Jacoby R, Reisberg B, Stoppe G, Barker A, Firmino H, Bennett H; InternationalPsychogeriatric Association Task Force on Wills and Undue Influence.Int Psychogeriatr. 2009 Feb;21(1):7-15.111 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. “Assessment of testamentary capacity

and vulnerability to undue influence”, American Journal of Psychiatry (2007) 164(5) 725.112 Spar JE, Garb AS., “Assessing competency to make a will.” American Journal of Psychiatry, (1992)

149:169-174.

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Clinicians should be mindful that there are also probably “‘protective” ormitigating factors which render a person resistant to the opinion and advice ofothers. These might include non-specific suspiciousness towards all and sundryincluding possible “influencers” (this contrasts with suspicion or paranoid ideationfocused on one person who is a possible beneficiary which can be exploited by an“influencer” who may fuel the paranoia and encourage exclusion of that personfrom the will). Similarly, personality traits of stubbornness, intransigence andbelligerence may be protective against influence.

Furthermore, while some disabled older people are vulnerable to the influence ofcarers, others use their wealth to manipulate carers. It is not unusual for olderpersons with financial resources to bargain with carers, using promises of willbequests to secure promises of care.113

4. 8. Court intervention to revoke or alter a will made by a person lackingwill-making capacityThe matters dealt with above may only be raised in the context of an applicationfor probate or the revocation of probate of a will-maker who has died. TheSupreme Courts of all the States and the two Territories have powers to make oralter wills or to revoke them in whole or on part during the lifetime of a personwho does not have will-making capacity.114 In Tasmania the Guardianship andAdministration Board has the power to make a will on behalf of a person whodoes not have will-making capacity.115

The South Australian case of Public Trustee v Phillips provides an example of aclassic case of a will made by an elderly person with dementia acting under theundue influence of another.116 Mrs Phillips was in her mid seventies in 1996 whenthe Guardianship Board of South Australia found that she had dementia and wasunable to manage her own affairs. The Board appointed the Public Trustee toadminister her financial affairs for her. The evidence was that Mrs Phillips hadbeen unable to manage her affairs because of dementia from about 1993. In 1992she came under the influence of a Mr Venning who persuaded her to buy a car,although she didn’t drive, and to sell her home unit and buy a house. Mrs Phillipsthen executed a power of attorney appointing Mr Venning as her attorney. Acting

113 Peisah C, Finkel S, Shulman K, Melding P, Luxenberg J, Heinik J, Jacoby R, Reisberg B, Stoppe G,Barker A, Firmino H, Bennett H; The wills of older people: risk factors for undue influence.InternationalPsychogeriatric Association Task Force on Wills and Undue Influence.Int Psychogeriatr. 2009Feb;21(1):7-15114 Succession Act 2009 (NSW) s 18; Succession Act 1981 (Qld) ss. 21-28; Wills Act 1936 (SA) s. 7; WillsAct 1997 (Vic) ss. 21-30; Wills Act 1970 (WA) Part XI and Wills Act 2000 (NT) ss. 19-26. See also ReFenwick [2009] NSWSC 530, “Court made wills for the Incapable” (2009) 83 ALJ 521 and Hockley, J,“Statutory wills in Australia: Wills for persons lacking capacity” (2006) 80 ALJ 68.115 Wills Act 2008 (Tas) ss. 29-38.116 [2004] SASC 142.

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under the power of attorney, Mr Venning undertook a number of transactions inrelation to Mrs Phillips’ property. These transactions disadvantaged her andsubstantially advantaged him. In May 1993 Mrs Phillips made a will appointingMr Venning as her sole executor and allowing him to control the disposition of herestate and to direct it to himself if he so wished. Doyle CJ found that Mrs Phillipsmade this will as a result of the influence exercised over her by Mr Venning andwithout a proper appreciation of his motives.

Under the Wills Act 1936 (SA) the Supreme Court may make an order revoking thewill of a person who lacks will-making capacity. It may also make or alter the willof such a person.117 The Public Trustee, as administrator of Mrs Phillips’s estate,was given leave to apply for such an order. Doyle CJ was satisfied that while MrsPhillips had lost will-making capacity she had indicated that she wanted her son toinherit her estate. She would not want Mr Venning to benefit by inheriting herestate and that she would not want her 1993 will to remain unrevoked. Doyle CJrevoked that will.118

As already noted, the Guardianship and Administration Board of Tasmania has thepower to authorise the making of a will on behalf of a person who does not havewill-making capacity. However, the Board may direct the application to it be madeto the Supreme Court.119 While the Board may authorise the making of a will andrevoke any will made under its orders, it does not have the capacity to revoke awill made by a person when they did not have will-making capacity.120 However,the Supreme Court has this power within its broad power to revoke a will of aperson who lacks will-making power.121

4. 9. Making and changing wills where will-making capacity is in doubt – therole of the lawyer and the role of the capacity assessor4. 9. 1. The practice implication for lawyers arising from the current law – anoverview of general considerationsThe test for will-making capacity is long-standing and stable yet not sointransigent as to fail to take into account new medical, psychiatric andpsychological knowledge and the fact that many more people are much wealthierthan in the 19th century with a wider range of assets which may include realproperty and a number of different kinds of personal property.

117 Wills Act 1936 (SA) s. 7.118 Public Trustee v Phillips [2004] SASC 142.119 Wills Act 2008 (Tas) s. 30(7). The Supreme Court’s will-making power is set out at ss. 21-28 of theWills Act 2008 (Tas). See also 4. 10 below.120Wills Act 2008 (Tas) s. 37.121 Wills Act 2008 (Tas) s. 22(1).

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There is an expectation that solicitors will take great care and careful notes whenobtaining instructions from those whose will-making capacity may be in doubt.They are also expected to obtain medical and other appropriate advice aboutwhether the will-maker’s capacity to meet all the elements of the legal test forsuch capacity both at the time the instructions for the will were taken and again atthe time of the execution of the will if there is a significant gap between those twoevents.

The positive attitude of the courts to the evidence of those who were familiar withthe will-maker in day to day life and who were lay to medicine is shown in thefollowing examples. A specialist geriatrician gave an opinion more than four yearsafter the death of the will-maker that he lacked capacity when he made his lastwill. However, this opinion was not accepted because the contrary evidence of anumber of witnesses who had extensive contact with the will-maker.122 Theevidence of a will-maker’s general practitioner was found not to be particularlyhelpful and the trial judge applied the evidence of the expert witnesses only to theextent that it supported rather than trumped or contradicted the evidence fromother non-expert sources.123 In a case in which the will-maker made a will in 1995and was made the subject of a financial management order by the GuardianshipTribunal of New South Wales in 2000, experienced consultant psychiatrists wereused by both sides.124 One psychiatrist said that the will-maker had capacity in1995; the other took the contrary view. The trial judge considered neither expertwitness convincing, partly because they both relied on statements excluded fromthe evidence but also because they had little evidence of the day to day life of thewill-maker to assist them.125 The judge gave detailed consideration to the evidenceof the non-expert witnesses.126

There is a tendency to treat the solicitors who took the instructions and drafted thecontested will as independent witnesses when consideration is given to their viewsabout the capacity of will-maker to make a will.

The cases also show the respect, even the preference, that is given to the evidenceof those able to relate their observations of the will-maker at, or about, the time the

122 Scattini v Matters [2004] QSC 459. See also Herbert v Grey [2003] SASC 384 in which the expertevidence of a neuro-psychologist was not accepted.123 Shorten v Shorten [2001] NSWSC 100 [95]-[99] and [114-119]. See also Shorten v Shorten [2002]NSWCA 73 [35], [37] and [42].124 Kerr v Badran [2004] NSWSC 735.125 Ibid. [57]. See also (2004) 78 ALJ 719-720. For a case in which the evidence of one expert witness waspreferred over another see, Read v Carmody (unreported NSW Court of Appeal, Meagher, Powell and SteinJJA, 21 November 1998, BC9803374).126 For a case involving highly respected, but differing, expert witnesses whose evidence was given fullcredit, but nevertheless led the judge to state; “I cannot come to any final conclusion simply by reference tothe medical evidence”, see Grynberg v Muller; Estate of Bilfeld [2001] NSWSC 532 [57].

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will was made.127 As a result, it does not follow that the evidence of medicalspecialists or psychologists, no matter how eminent, will be accepted in preferenceto the evidence of the solicitor who took the instructions and was involved withthe execution of the will or in preference to the evidence of other eye-witnesses.

It is also essential that doctors and other expert witnesses are advised of the legaltest for will-making capacity before they provide their opinions.128 That issue andthe attitude of the courts to the evidence of health professionals retained to giveexpert witness opinions about a person’s will-making capacity after the person’sdeath are reflected in Seale v Cross.129 In that case, a doctor gave an opinion afterthe death of the will-maker and more than four years after the will was made to theeffect that the will-maker did not have will-making capacity when she made herlast will.130 The doctor’s evidence was not given much weight because it wasbased on someone else’s diagnosis of “emerging Alzheimer’s disease” and thedoctor’s assumption that such a diagnosis was inconsistent with will-makingcapacity.131 Also the doctor’s opinion did not show an understanding of the legaltest for incapacity.132 On the other hand the evidence of will-making capacitycame from one of those seeking to prove the validity of the will who was aregistered nurse and who had had a great deal of contact with the will-maker,especially during the latter part of her life.133 The validity of the will was upheld.

This review of the cases indicates an apparent preference by judges to uphold theright of a person to make a will even if they have cognitive defects and are thesubject of guardianship or administration orders made by tribunals exercisingguardianship jurisdiction.

The fact that those who have been found to lack decision-making capacity and tobe in need of either a guardian or an administrator or both and the legal policy infavour of upholding the right of adults to make wills even if they are cognitivelyimpaired emphasises the need for doctors and other health professionals toappreciate the differences between the legal tests for will-making capacity and forcapacity for other purposes. This situation creates tensions between those trying togive effect to a person’s capacity to make or remake a will and service providersseeking to protect those with cognitive defects from exploitation. However, that is

127 As to treating the solicitor who took instructions and drafted the will as an independent witness see,Theophanous v Gillespie [2002] QCA 117 [6]-[7] (a case involving a man dying of cancer); Martin vFletcher [2003]WASC 59 [14]-[25] ( case involving a man with Lewy Body dementia described as acondition that can fluctuate significantly and involve hallucinations but a degree of memory impairment notas severe as with Alzheimers disease); Scattini v Matters [2004] QSC 459.128 Seale v Cross [2003] WASC 237 [29].129 Ibid.130 Ibid.131 Ibid. [29].132 Ibid.133 Ibid. [21].

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only one example of the complexities, tensions and uncertainties that can arisewhen action is taken to help or pressure a person to make that will when their will-making capacity is, or may be seen to be in the future to have been in doubt whenthey made the will in question.

4. 9. 2. Caution when taking instructions for the drafting of a willIt is not always easy for solicitors to identify those clients who are incompetentbecause people with early dementia may appear relatively normal on casualconversation and maintain their social graces particularly in earlier stages of thedisease.134 This observation is incorporated in dementia staging systems such asthe CDR, which acknowledge that dementia may not be evident to others untilmoderate to severe stages of the disease.135 Further, lawyers cannot always rely onfamily members to inform them that a client has dementia because families oftendeny early signs of dementia out of fear of the diagnosis or dismiss such signs as“normal for that age”. Even health care professionals dealing with the client maybe no more alert to the diagnosis. Dementia can be missed unless it is specificallylooked for. Family doctors, many of whom rely on passive identification ratherthan active screening of dementia for diagnosis, often fail to identify dementia.Studies have shown consistently that 80-91% of cases of dementia are missed bygeneral practitioners.136 The same is often true for nursing staff in nursinghomes.137 Finally, the determination of testamentary capacity is a highlyspecialised task based on structured assessment.138

As already noted, it is therefore prudent in all cases, if not essential, to documentthe process of taking instructions from all clients over 65. It is also wise tonormalise the process so as not to alienate elderly clients who may be offended byany suggestion of infirmity or incapacity. The following explanation might behelpful:

134 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacityand vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): 722-727.135 Berg L. (1988) Clinical Dementia Rating (CDR) Psychopharmacology Bulletin 24:637-639.136 Brodaty H, Howarth GC, Mant A, Kurrle SE. “General practice and dementia. A national survey ofAustralian GPs.” The Medical Journal of Australia (1994) 160(1):10-4; Lliffe et al, (2010) Evidence-basedinterventions in dementia: A pragmatic cluster-randomised trial of an educational intervention to promoteearlier recognition and response to dementia in primary care (EVIDEM-ED).Trials 11:13; Valcour et al(2000) Archives Internal Medicine 160: 2964-8; Villars et al (2010) The primary care physician andAlzheimer’s disease: an international perspective The journal of nutrition health and ageing 14(2): 1-11Implementing a Screening and Diagnosis Program for Dementia in Primary Care; Boustani M., et al (2005)J Gen Intern Med. 20(7): 572–577.137Sorensen L., Foldspang, A., Gulman, N & Munk-Jorgensen P. “Assessment of dementia in nursing homeresidents by nurses and assistants: criteria validity and determinants.” International Journal of GeriatricPsychiatry, (2001)16, 615-621.138 Shulman KI, Peisah C, Jacoby R, Heinik J, Finkel S. “Contemporaneous assessment of testamentarycapacity”. Int Psychogeriatr. (2009) Jun; 21(3):433-9

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I hope you don’t mind, but I’m going to ask you some questions in order toproperly document this will-making process. I do this with everyone whocomes to see me over 65.

It may be helpful to ask the client to:

1. “describe your assets”; and,2. “describe who your heirs are, how they are related to you”; and3. “why you are disposing of your property in the way you have chosen”.

It is preferable if the health care professional can be given information aboutprevious wills and the person’s will-making pattern. The person changing theirwill should be questioned about the rationale behind any proposed changes to theway they had previously disposed of their property in their will.

When checking the knowledge or understanding of the client, they should beasked to explain the effect of what they are doing in their own words. Theirresponses should be recorded verbatim. It is important to remember that anaffirmative answer to the question: “Do you understand what this will contains?”is not an adequate reflection of understanding

Further, as orientation and social presentation are separate from the cognitivefunctions required for will-making, the observation that a person was “pleasant,well–dressed and chatted about the weather” does not help prove that they hadcapacity to carry out the will-making process competently.

It is prudent to inquire specifically whether the will-maker has been the subject ofany application to the guardianship and administration tribunal in the relevantState or Territory and whether any administration or financial management orderhas been made in relation to them by that tribunal, any other tribunal or a SupremeCourt. It is also wise to enquire whether any enduring power of attorney is inoperation or whether the person has made an appointment of enduring guardian,and who the enduring attorney and the enduring guardian are. It is also useful tocheck whether the person is still making their own medical consent decisions orwhether their “person responsible” or other legally authorised substitute decision-maker is doing that for them. While none of these matters demonstrate that theperson has lost will-making capacity it puts people on notice that they may havedone so.

4. 9. 3. Conditions which might affect capacityBanks v Goodfellow was based on a case of psychosis. These days cases ofdementia far outnumber cases of psychosis as the basis for will challenges. In a

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case series of 25 challenges to testamentary capacity referred to a Canadianpsychiatrist, 40% were based on dementia, 28% were alcohol related, 28% basedon neurological or psychiatric disorder, 20% to personality disorder and 12%related to suicide 139. The personal experience with will challenges of one of theauthors reflects a similar, but greater, preponderance of dementia amongst aheterogeneous group of syndromes observed. In a series of 41 will challenges,78% were based on dementia, 7% on delirium or complex medical conditions, 5%on schizophrenia or paranoid states, and 2.5% each on alcohol, personalitydisorder, bipolar disorder and depression/suicide.140 Although not as frequentlyrepresented as the primary condition, alcohol abuse was the most common co-morbid condition. Clearly this will vary according to the specialty of the expertand the patterns of referral to psychologists or geriatricians may well differ.

4. 9. 3. 1. Dementia and testamentary capacity: definition and causesDementia is a neurodegenerative syndrome characterised by the development ofmultiple, cognitive (intellectual) deficits, usually including memory impairment.According to the DSM- IV, dementia is diagnosed in the presence of memoryimpairment and one or more of the following cognitive disturbances:

1. aphasia (language disturbance)2. apraxia (impaired ability to carry out motor activities or translate ideas into

actions)3. agnosia (failure to recognise or identify objects)4. disturbance in executive functioning (ie, planning, organising, sequencing,

abstracting)141

To satisfy the criteria for a diagnosis of dementia these cognitive deficits mustcause significant impairment in social and occupational functioning and representa significant decline from a previous level of functioning. As already noted, adiagnosis of dementia does not preclude testamentary capacity.

There are over one hundred causes of dementia, although Alzheimer’s disease isthought to be the most common cause, followed by Vascular Dementia and LewyBody Dementia, depending on whether clinical or autopsy diagnoses areexamined. Mixed dementia is far more common than was previously suspected.Approximate relative contributions of various causes of dementia are as follows:pure Alzheimer’s Disease 35%; Mixed Vascular Dementia /Alzheimer’s disease15%; Pure Vascular Disease 10%; Lewy Body Dementia 15%; Fronto-Temporal

139 Shulman, Cohen and Hull, (2005) op. cit. (footnote 1), p. 67.140 Peisah, C (unpublished data)141American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders FourthEdition. (DSM-IV), Washington, DC, American Psychiatric Association, 1994.

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Lobe Disease 5%; and Other 20% .142 Each type of dementia is associated with aparticular type and distribution of brain pathology, cognitive profile and rate andnature of decline with variable impact on capacity.

Alzheimer’s disease is a progressive disorder characterised by the deposition ofprotein aggregates called plaques and neuronal inclusions called tangles. Thesedevelop initially in the temporal lobe regions of the brain but spread to involveother cortical areas. Alzheimers’ disease is manifested by early memory lossaccompanied by multiple deficits in language, motor skills and perception andwith gradually continuing global cognitive decline and progressive worsening offunction.143

Vascular dementia is defined as dementia that results from vascular or circulatorylesions (i.e. cerebrovascular disease) in the brain.144 Such lesions may includeobvious stroke/s involving occlusion of large vessels but there are multiple typesof “small vessel dementias” which may involve tiny complete or incomplete“silent strokes” (of which the person may be unaware), disease of the bloodvessels and surrounding brain and hemorrhagic lesions. The pattern of deficitsdepends on the location and distribution of such lesions but in general, patientswith vascular dementia have only modest problems with memory but withsignificant executive (i.e. problems with planning and judgment) dysfunction.145

Dementia with Lewy Bodies has been acknowledged increasingly as a relativelycommon cause of dementia; some would say the second most common cause ofdementia after Alzheimer’s disease, at least at autopsy.146 It is characterised by thepresence of spherical bodies inside brain neurons and a clinical presentation ofdementia with early problems with attention, judgment and visuospatialdifficulties predominating over memory deficits, falls, signs of Parkinsonism andprominent hallucinations.147

Distinguishing the cause of dementia in a person whose will-making capacity isbeing questioned is relevant insofar as it may help predict the likelihood of certaindeficits at different stages of the disease, although there is still much variationbetween individuals. For example, as stated previously, someone with vasculardementia may have early loss of frontal, “executive” functions such as judgment

142 Mendez MF, Cummings JL., Dementia: A Clinical Approach , Philadelphia, Butterworth Heinemann,(3rd ed) 2003.143 Kril Halliday G., “Alzheimer’s disease: its diagnosis and pathogenesis” Int Rev Neurobiology (2001) 48:167-217.144 Roman GC. op.cit. p5.145 Ibid.,p 6146 McKeith I., “Dementia with Lewy Bodies: Clinical and pathological diagnosis.” (1998) Alzheimer’sReports 1:83-87.147 Ibid.

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and reasoning, because of the vulnerability of the frontal lobe to the type ofcerebrovascular pathology that causes vascular dementia, and accordingly earlydifficulties weighing the claims of beneficiaries.

4. 9. 3. 1. 1. The relevance of severity of dementiaAn assessment of the severity of dementia is usually based on the extent of theperson’s cognitive and functional impairment. A person in the early stages ofdementia may require minimal assistance or prompting in their performance ofactivities of daily living. At the later stage they may be totally dependant onothers for basic activities such as feeding and toileting and in the final stages ofdementia the person may be bedridden. Thus, although there is probably only amodest correlation between performance on scales which measure functionalimpairment and will-making capacity, performance on such scales may give anidea of the severity of the person’s dementia.

Also, general cognitive screens such as the Mini Mental State Examination(MMSE) do not identify incapable people with any degree of sensitivity orspecificity except at the extremes of performance. 148 The MMSE is a bedsidescreen of cognitive function. It is not a diagnosis; it is merely a guide for ratingseverity. A MMSE score between 18 and 24 suggests mild dementia; a score of 10to 17 suggests moderate dementia and less than 10, severe dementia. Thesethresholds are very loose as scores on the MMSE vary according to education,language, how it is administered and how the patient feels on the day.149 Further,the MMSE is limited in value because of its failure to include items which testfrontal or executive function which are crucial in the will-making process. Inslowly progressive dementias such as Alzheimer’s disease, a person may lose 3 to4 points on the MMSE per year.150

When assessing the relevance of severity to capacity, it is important to considereach case on its individual merits. In particular, the job of the expert is to considerthe cognitive capacity of the person in the context of the complexity or “taskspecific” aspects of the decision to be made, as suggested by Shulman andothers.151 For example, a person with severe dementia may still have capacity todistribute a simple estate, for example if their only asset was their house to be

148 Peisah, C and Brodaty, H, “Dementia and the will-making process: the role of the medical practitioner”,Med J Aust (1994) 161, 381, 382.149 Peisah, C., Brodaty, H., “The role of the GP in the management of Alzheimer’s disease”., MedicineToday (2004) 5: 16-25.150 American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders FourthEdition. (DSM-IV) 1994; Washington, DC: American Psychiatric Association151 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacityand vulnerability to undue influence, American Journal of Psychiatry 2007 164(5): 722-727. See alsoContemporaneous assessment of testamentary capacity.Shulman KI, Peisah C, Jacoby R, Heinik J, FinkelS. Int Psychogeriatr. 2009 21(3):433-9

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bequeathed to one surviving relative, while a person with mild dementia may havedifficulty apportioning an estate involving a complex share and real estateportfolio in various proportions amongst multiple beneficiaries. Importantly,dementia does not have to be severe to affect one’s capacity for highly complexreasoning such as appraisal of family members as discussed in Chapter 1.2.

4. 9. 3. 1. 2. Dementia and lucid intervalsAs stated previously, the courts have long held the idea that those with mentalillnesses may be able to make wills during lucid periods. However, it is generallyagreed among clinicians that while persons with dementia may have better days orbetter times of the day, those with advanced dementia do not have “lucid-enough”intervals to make a will competently during those periods. While much has beenmade of the determination of mental capacity at the precise moment the will ismade, it is often difficult to ignore the “before and after evidence”.152 Windeyer J,in Robinson v Spratt accepted evidence as to “good days and bad days” but noted:

The clear psychiatric evidence is that the deceased was on a downhill pathfrom 1989 onwards as a result of dementia. There were some better periodsbut the path was always downwards.153

4. 9. 3. 2. AphasiaOne of the hallmarks of capacity is the ability to communicate a preference or adecision and is thus dependent on language performance. Aphasia is defined as animpairment in the understanding or transmission of ideas by language in any of itsforms, namely, speaking (expressive and receptive speech), reading or writing,which is due to brain injury or disease, 154 most commonly stroke. The presence ofaphasia may thus hamper the assessment of both capacity and overall cognitivefunction. The challenge for the clinician is to determine the extent of cognitiveimpairment, if any, accompanying aphasia.155 Indeed there is mounting evidenceto suggest that it is impossible to predict the status of other aspects of cognition onthe basis of language skills.156 Higher level executive skills such as involved injudgment, flexibility, planning and foresight are the most vulnerable to the effects

152 Sprehe, D.J., Kerr, A.L. (1996) Use of legal terms in will contests: implications for psychiatrist. Bulletinof the American Academy of Psychiatry and Law 24: 255-265.153 [2002] NSWSC 426, [43]. For a case involving the loss of will-making capacity because of dementiaand no evidence of it being a “good day” when one of the wills was made see, Herbert v Grey andKhorasane [2003] SASC 384. For a US example of a person with mild Alzheimer’s Disease being held tohave will-making capacity see, Estate of Harms 149 P. 2d 557 (2006) and for a person with depression anddementia see, Pyle v Sayers 39 S.W.3d 774 (2001).154 American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders FourthEdition. (DSM-IV), Washington, DC, American Psychiatric Association, 1994.155 Ferguson A, Worrall. L., McPhee J., Buskell, R., Armstrong, E, Togher L. “Case study -Testamentary capacity andaphasia: A descriptive case report with implications for clinical practice”, Aphasiology (2003) 17 (10) ,965-980.p 973.156 Helm-Estabrooks N, “Cognition and aphasia: a discussion and a study” Journal of CommunicationDisorders, (2002) 35: 171-186.

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of brain damage associated with aphasia and must be carefully screened for insuch patients.157 Therefore, previous suggestions of using prompted recall andrecognition memory with cues (e.g. identifying the correct response from a list ofcorrect and incorrect answers) to maximize communication with an aphasic will-maker provide fairly gross estimation of understanding and should be bestinterpreted by a speech-language pathologist. 158 It is advised that a speech-language pathologist facilitate communication between a client with languagedisturbance and solicitor or a client and an expert assessing capacity.

4. 9. 3. 3. DeliriumDelirium is a transient, often fluctuating impairment in consciousness, attentionand cognition. It may mimic dementia, but it is of sudden onset and is caused byunderlying physical illness such as chest or urinary tract infection or drug toxicity.It is usually reversible once its underlying cause is treated; however it oftencomplicates dementia making the dementia appear temporarily worse. Deliriummay affect will-making capacity due to its global effects on cognition, andparticularly because of its effects on concentration, perception of reality, memoryand reasoning, although the effect on will-making will depend largely on theseverity of the delirium, its fluctuation, and the complexity of the will-makingtask. 159The issue of delirium is usually relevant when instructions are taken in thehospital setting, particularly when someone decides, or is prompted, to make a willon their “death bed” or when they are extremely unwell. Consequently, any doctorassessing a person’s will-making capacity, either contemporaneously orsubsequently, should be extremely careful to assess whether or not the person haddelirium when they made the relevant will.160

4. 9. 3. 4. Alcohol and drug-related disordersAlcohol-related disorder is an important co-morbid condition in documented willchallenges, comprising 28% of the challenges in one small series.161 Regardless ofwhether or not the will-maker suffered habitual intoxication, abuse or dependence,the effect of alcohol abuse is only relevant if the person was intoxicated,withdrawing from alcohol or suffering other consequences of alcohol abuse suchas paranoid ideation or brain damage at the time of making the will and that suchmental disorder rendered the person incapable of performing one or more of the

157 Ibid.,158 Spar JE, Garb AS., “Assessing competency to make a will.” American Journal of Psychiatry, (1992)149:169-174.159 Liptzin, B. Peisah C., Shulman K. Finkel S. for the International Psychogeriatric Association Task Forceon Wills and Testamentary Capacity (2010) Testamentary capacity and delirium InternationalPsychogeriatrics, 22:6, 950–956160 For a case in which delirium was an issue, see Grynberg v Mulle; Estate of Bilfeld [2001] NSWSC 532.161 Shulman, Cohen and Hull, (2005) op. cit. (footnote 1), p. 67.

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mental functions necessary to make a valid will. 162,163 This was illustrated inTimbury v Coffee, a case in which the will-maker’s suspicions, distrust, resentmentand tendency to hostility towards his wife as a result of his alcoholism wereenough for the jury to find that he was “not of sound disposing mind” when hemade his last will .164 The overuse of alcohol can cause permanent brain damageand, as a’Beckett J pointed out in In re White, cause, to a great extent, the loss of aperson’s will and intelligence such that they can easily be influenced when makingtheir will.165

This is the case with any drug-related disorder. Drugs (and this means boththerapeutic and recreational) or withdrawal from them can cause changes inconsciousness, perception of reality and reasoning all of which can impact on thewill-making process. Drug effect can vary between subtly altering the waycomplex decisions are made at one extreme, to rendering a patient unconscious atthe other.166

4. 9. 3. 5. Psychotic conditions such as schizophreniaPsychotic symptoms include delusions (fixed false ideas about poverty, theft, sin,paranoia etc) and hallucinations (false sensory perceptions such as hearing voices).Some elderly people suffer psychotic symptoms due to illnesses such asschizophrenia or bipolar disorder (sometimes called manic depressive disorder)which they have developed earlier in life and continue to suffer in old age whileothers present with such illnesses for the first time in old age. Psychoticsymptoms may also complicate dementia. Up to 86% of sufferers have depression,205 to 73% have delusions and 15% to 49% have hallucinations.167 As withalcohol and other drug related disorders, psychotic symptoms are only relevant ifthey render the person incapable of performing one or more of the mentalfunctions necessary to make a valid will.

4. 9. 3. 6. Mood disorders and suicideMood disorders such as depression will impact on the will-making process if theyare accompanied by symptoms of hopelessness or delusions of persecution,poverty or sin which might effect the will-maker’s perception of his assets orrelationships. As already noted, the act of suicide is not regarded as evidence per

162 Shulman KI, Hull I, Cohen CA. “Testamentary capacity and suicide: an overview of legal andpsychiatric issues”, Int J Law Psychiatry, (2003) 26 :403-415 at pp 406-407.163 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacityand vulnerability to undue influence American Journal of Psychiatry (2007); 164(5): 722-727.164 (1941) 66 CLR 277. See also Landers v Landers (1914) 19 CLR 222 and Re Pommerehnke’s Estate(1979) 16 A. R. 442.165 (1892) 18 VLR 715, 717.166 Ferner RE., “Drugs and testamentary capacity”, Journal of Clinical Forensic Medicine, (1997) 4: 185-187.167 International Psychogeriatric Association (IPA) Behavioral and Psychological Symptoms of Dementia(BPSD) Educational Pack 2002 International Psychogeriatric Association.

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se of incapacity.168 Suicide usually occurs in the context of psychiatric disorderssuch as depression, alcohol abuse and delusional beliefs and its relevance tocapacity must be interpreted in the light of these contextual psychiatric disordersas well as the nature of gifting set out in the will (i.e. whether it was expected orrational or otherwise) and the proximity of the making of the will to the writing ofthe suicide note and the suicide itself.169

4. 9. 3. 7. Personality disorderAs stated previously, the law draws a distinction between mere antipathy, albeitunreasonable, towards one who has a claim, and judgment affected by disorder ofthe mind. This was exemplified in the case of Re Estate of Griffith.170 Mrs Griffithwas a widow who made no provision for her son, her only child, in her final will.Prior to this, their relationship had irretrievably broken down such that they didnot speak to each in the last ten years of her life. He had been a dutiful and lovingson who was attentive to his mother’s needs. Mrs Griffith had taken strongexception to his relationship with a lady friend. Emotions of possessiveness andjealousy may have been involved. There was evidence of a 14 year history ofbizarre and aggressive behaviour on her part culminating in her bursting into herson’s room in the early hours of the morning brandishing a kitchen knifescreaming that she hated him and telling him to get out.

The psychiatric evidence offered was that she suffered a paranoid personalitydisorder which manifested itself in delusions that her son did not care for her, thathe was a threat to her and that he suffered from serious character defects. The trialjudge, Santow J, was unable to conclude either way that Mrs Griffith’s rejection ofher son stemmed from a paranoid personality disorder or a delusion of suchextremity that as to connote a condition of insanity. He went on to note that if hehad had to find that Mrs Griffith had had a delusion in the form of “a fixed andincorrigible false belief” that she could not be reasoned out of, he would havedone so. However, he noted that the party wishing to prove that the will was validhad to show that she had will-making capacity at the time she made the will andthat they had failed to do so. The New South Wales Court of Appeal upheldSantow J’s decision as a correct view of the law.171

Gleeson CJ, with whom Handley JA agreed, noted that Santow J’s reasoninginvolved the premise that:

168 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 689. See 4. 9. 3. 6 above.169 Shulman KI, Hull I, Cohen CA. (2003) op.cit. (footnote 124), p. 406.170 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284.171 Ibid. Gleeson CJ and Handley JA; Kirby P in dissent.

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[I]t was unnecessary for him to make a positive finding that the testatrixwas suffering from insane delusions in order for the onus of proof oftestamentary capacity to fall upon the party propounding the will.172

At the end of his judgment Gleeson CJ noted that the evidence of the psychiatrist:

[A]dded sufficient weight to the contention that what was here involvedwas mental disturbance, and a judgment that could be characterised, notmerely as being unfair, but as being the product of mental disorder.173

Court of Appeal’s decision stands for the proposition that a positive finding ofdelusion is not necessary to raise a doubt as to capacity. Gleeson CJ’s commentsopen up the possibility of the law catching up to where the knowledge of medicineis in relation to personality disorder. This knowledge includes a realization thatpersonality disorders can have just as distorting an effect on a will-maker’scapacity as can what the law has called since 1870 at least, “insane delusions”.174

Some personality disorders, such as paranoid (pervasive distrust andsuspiciousness of others), borderline (pervasive instability of interpersonalrelationships, self image and feelings) and narcissistic (pervasive grandiosity, needfor admiration and lack of empathy) can present as serious disorders of mind,associated with abnormalities in mood, ideation and object relations (i.e. relationswith loved ones). In severe cases, symptoms such as: (i) “splitting” namelydistorted perceptions of others as belonging to either the idealized or all-goodgroup, or the devalued or all-bad group (e.g. the good wife, the good grandsonversus the bad sons and the bad wife); (ii) “idealization” namely attributingexaggerated positive qualities such as omnipotence and perfection to others; (iii)“devaluation”, namely attributing exaggerated negative qualities to others; and (iv)paranoid ideation with or without accompanying mood disturbance may poisonaffections towards beneficiaries and render a will-maker unable to adequatelyweigh the claims of potential beneficiaries.

Notwithstanding this, caution is advised when suggesting that personality disordermight be incompatible with will-making because the diagnosis of personality

172 Idid. 292173 Ibid. 293.174 For a US statement of the insane delusion test see, Breeden v Stone 922 P.2d 1167 (2006) and for a USexample of an insane delusion leading to the setting aside of a will see, Miami Rescue Mission Inc vRoberts 943 So. 2d 274 (2006). For a cautionary tale about a person disinherited for putting the will-makerin a nursing home see, Dougherty v Rubenstein 914 A. 2d 184 (2007). The will-maker was held not to besuffering from an insane delusion. For another cautionary tale see, In the Estate of Diaz 524 S.E.2d 219(1999) in which a woman disinherited her children who had caused her to be committed involuntarily to amental hospital after she refused to seek treatment. The codicil to her will was upheld, despite herdepression and cancer.

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disorder is based on a life-long and enduring pattern of behaviour and relating toothers. It is probably incompatible with sound disposition only in severe cases orduring times of crisis or decompensation (i.e. when under stress, the person withpersonality disorder becomes particularly disturbed).

4. 9. 4. Expert opinions – contemporaneous and retrospectiveThe importance of obtaining assessments by doctors or psychologists of a person’swill-making capacity before they make a will if their will-making capacity is indoubt is clear from the earlier parts of this chapter. It is also prudent, if it can beforeseen that the will is likely to be challenged and the will-maker’s estate issubstantial, and it is possible to take the time to get a specialist’s opinion withoutrisking the person dying before their will can be finalized, to seek and obtain thatopinion contemporaneously. Despite the preference for contemporaneous evidenceapparent from the decided cases, it is still worthwhile obtaining the (retrospective)opinion of an experienced specialist with the relevant expertise if the will ischallenged after the death of the will-maker.

However, these expert opinions will have probative value only if the specialistsretained are properly briefed as to the legal tests for will-making capacity and areprovided with all the available documentary and other evidence about the will-maker’s capacity at the time they gave their instructions for and made their willand any other relevant factual information. These matters are taken up in moredetail below.

4. 9. 4. 1. What kind of expert?From the lawyer’s perspective, the first question is what kind of specialist is themost appropriate to give the expert opinion required in the circumstances. It iswise to retain a health care professional with relevant psychological (e.g.neuropsychologist), medical (e.g. neurologist or geriatrician) or psychiatric (e.g.general psychiatrist, forensic psychiatrist or psychogeriatrician) expertise andmedico-legal experience. Different cases are more suited to different types ofexperts. For example, a psychiatrist may have special expertise to consider a casewhich relies on the presence of psychiatric disorder or psychotic symptoms. Aneurologist or geriatrician may have special expertise in a case of delirium andcomplex medical conditions. A neuropsychologist may offer special expertise in acase in which there is little formal medical documentation of dementia and relieson extrapolation of behavioural disturbance to prove cognitive dysfunction.

When a health care professional is asked to act as an expert witness in anymedico-legal case, they must turn their mind to the issue of expertise.175 Codes of

175Contemporaneous assessment of testamentary capacity.Shulman KI, Peisah C, Jacoby R, Heinik J, Finkel S. Int

Psychogeriatr. 2009 Jun;21(3):433-9

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conduct require experts to note if a question falls outside their field of expertise, soit is useful to consider: “Am I the best person to comment on this case? Should Irecommend someone else? ”. After agreeing to take on the case, but beforeembarking on any work, it is helpful to outline the terms of engagement such asavailability, hourly fees, approximate total cost and the expected procedure forfinalising the report and payment.

4. 9. 4. 2. Assessment at the time the will is being madeAs Santow J pointed out, if there is doubt about a person’s will-making capacitywhen they are making or remaking their will it is most prudent, if not essential, forthe solicitor acting for the will-maker to have the will-maker examined by a healthprofessional with expertise in assessing will-making capacity and to receive andconsider that advice.176 If there is any significant time period between when theinstructions for the will are taken and the will is executed (actually made), expertopinion about the person’s will-making capacity should be obtainedcontemporaneously with each occasion.

In such cases, the will document must give effect to the will-maker’s instructionsand those instructions must continue to reflect those intentions. We would suggestthat this last matter is to be inferred unless there is an evidential basis for believingthat the will-maker changed their mind between giving instructions and executingthe will. Crucially however for the will to be valid, the will-maker must know atthe time they executed the will what they were doing and thus had sufficientmental capacity to carry out the juristic act which will-making involves. Thatspecifically is what the will-maker must have capacity to understand in order to befound to have will-making capacity at the time they executed the will.177

4. 9. 4. 3. What to provide to the expertThe expert dealing with a matter while the will-maker is still alive should beprovided with the following:

1. A concise statement of the legal test for will-making capacity;2. All of the will-maker’s previous wills to establish the will-making pattern;3. Evidence of previously established trust on the part of the will-maker e.g.

previously appointed attorneys under powers of attorney or appointedenduring guardians;

4. Any medical notes (e.g. notes of the will-maker’s general practitioner andany specialist medical reports relevant to capacity);

5. A family tree to establish the accuracy of the will-maker’s recall ofpotential beneficiaries;

176 Pates v Craig and Public Trustee, Estate of Cole [1995] NSWSC 87 [147].177 Perrins v Holland [2010] EWCA Civ 840 [55], [2011] 2 All ER 174.

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6. An account of the will-maker’s assets to assess the accuracy of the will-maker’s knowledge of their estate.

4. 9. 4. 4. Making the contemporaneous assessmentPrior to assessing a client for a solicitor in a contemporaneous case it is essentialthat the expert be armed with the information outlined above. Consultation withthe lawyer is important and sometimes it is helpful to have the solicitor presentduring the assessment. At the outset of the assessment, the expert assessor shouldestablish the will-maker’s understanding of the nature and purpose of theassessment and get their consent to proceed.178

In order to gauge the extent of the potential will-maker’s functional incapacity, itis useful to interview a person, such as a family member or carer, who has hadregular and recent contact with the potential will-maker. It is advisable that anysuch interviewee should not be present in the room during the examination of thepotential will-maker.

The assessment should include a medical and psychiatric history, mental statusand cognitive examination in order to exclude or make a diagnosis of mentaldisorder, as well addressing the specific tests for testamentary capacity.Ultimately, the clinical examination should be linked to the will-maker’s capacityto meet the specific elements of testamentary capacity.179 The expert should,where possible, gain an understanding of the potential will-maker’s familyrelationships and the “emotional/psychological milieu” in which the will-makerlives with specific reference to conflicts or tensions within the family, of which thewill-maker should be aware.180 The expert should also gain an understanding ofthe will-maker’s rationale for the disposition of their property in the light of familyrelationships and patterns of trust established in the previous will-making patternor the pattern of other documents such as any powers of attorney. If possible, thewill-maker should be asked to reflect on the implications of their decision. Theyshould appreciate the consequences and impact of a particular disposition,especially if it excludes natural or usual beneficiaries such as close familymembers. The expert should seek clarification of concerns regarding potentialbeneficiaries who are excluded from the will or bequeathed lower amounts thanexpected.181

178Shulman KI, Peisah C, Jacoby R, Heinik J, Finkel S. Contemporaneous assessment of testamentary capacity. Int

Psychogeriatr. 2009 Jun;21(3):433-9

179 Ibid.,180 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacityand vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): 722-727.181 Ibid.,

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Caution on this matter has been advised previously as people with frontal lobedeficits may be able to narrate in detail the consequences of an action withoutconsidering their significance.182 This may be particularly relevant if a personwith dementia has been influenced and coached in their decision and is able to“parrot” reasons for disposing of their assets in a way which favours certainindividuals. Careful probing is especially important if there is a proposeddeparture from previous wills or consistently expressed wishes. Such probing isalso prudent if the potential will-maker proposed to make multiple changes in theirwill as a means of controlling individuals necessary for their support orindependence or if those who appear to be the proper objects of the person’sbounty are excluded.183

Shulman and others have provided a useful guide as to the questions that might beasked of the potential will-maker to assess their understanding of some of theseissues. These are:

1. Can you tell me the reason(s) why you have decided to make changes inyour will?

2. Why did you decide to divide the estate in this particular way?3. Do you understand how individual A might feel, about being excluded from

the will or about being given a significantly less amount than previouslyexpected or promised?

4. Do you understand the economic implications for individual B of thisparticular distribution in your will?

5. Can you tell me about the important relationships in your family and othersclose to you?

6. Can you describe the nature of any family or personal disputes or tensionsthat may have influenced your distribution of assets? 184

It is also helpful to ask the potential will-maker to repeat their intent with regardsto disposition of their estate at the end of the consultation to check consistency.Some experts do assessments on two separate days to ensure this. It is importantto document in detail the potential will-maker’s wishes. Some clinicians advocatetape or video assessments to ensure accuracy.

4. 9. 4. 5. Assessment after the will-maker has diedAfter the will-maker has died, any expert commenting on capacity is at a relativedisadvantage compared to those who have seen the will-maker during life.

182 Freedman, M., Stuss, D.T., and Gordon, M., (1991) Assessment of competency: the role ofneurobehavioural deficits. Ann Int Med, 115, 203-208.183 Shulman, Cohen and Hull, (2005) op. cit. (footnote 1), p. 68184 Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacityand vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): p725.

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Notwithstanding that, there is often a wealth of documentation, usually more thanwas available during the will-maker’s life, upon which an expert may draw theirconclusions, providing they are given all the available and relevant documents.

4. 9. 4. 6. What to provide to the expertThe expert dealing with a matter after the will-maker has died should be providedwith the following:

1. Any medical notes relating to the will-maker made contemporaneouslywith the will, especially the records of the will-maker’s general practitioner,hostel, nursing home or hospital progress reports, Aged Care AssessmentTeam notes.

2. Affidavits made by lay people relating to the will-maker’s relationshipswith their beneficiaries and any other relevant information from non-professional people which may point to a change in the will-maker’spersonality or relationships, or show conflict coinciding with the will-maker’sdementing or other illnesses relevant to will-making capacity. Such laypeople could include family members, friends and carers who had first-handexperience of the will-maker;

3. Evidence of previously established trust on the part of the will-maker e.g.previously appointed attorneys under powers of attorney or appointedenduring guardians;

4. All previous wills to establish the will-making pattern, or the lack of it;5. Any file notes or affidavits from the solicitor who took instructions from the

will-maker;6. All documents provided to the experts acting for the other parties if litigation

has been commenced.

4. 9. 4. 7. Retrospective assessmentAlthough retrospective assessment is often less valued by the courts, there is oftenmore documentation available to the expert than that available to an expert makinga contemporaneous assessment. There is usually more time available to gather therelevant material.

Medical records may provide detail about relevant medical conditions such ashistory of stroke, risk factors for cerebrovascular disease or the results of anycognitive examination. Progress notes from residential care facilities areparticularly helpful in that they often document patterns of behaviour relevant todecision making in detail on and around the day the will was made; for example,behaviours reflective of poor impulse control, planning or judgment.

Evidence from lay people will often demonstrate the nature of family relationshipsor previously expressed wishes as well as provide descriptions of behaviour. All

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these matters must be interpreted in terms of their relationship to the legal criteriafor will-making capacity. Less helpful aspects of lay testimony include thefrequently made but faulty assumption that the will-maker was competent becausetheir social graces had been preserved. 185

4. 9. 5. Writing an expert report4. 9. 5. 1. The content of the reportRegardless of whether the assessment is contemporaneous or retrospective, inaddition to addressing the specific criteria for will-making capacity, the expertwitness should provide an account of the will-maker’s relationships and mustobtain their medical history, the history of their cognitive decline and the results ofany cognitive examinations of the will-maker. These issues must be addressed inthe expert’s report, a suggested outline of which is set out in the box below.

Suggested outline of report for will-making capacity:1. Expertise or CV annexure;2. Questions asked;3. Acknowledgement of having read the relevant expert code;4. Evidence upon which opinion is based (i.e. a list of the documents provided);5. Circumstances of assessment if contemporaneous (i.e. visited at home/surgery for

how long/who was present);6. Facts, matters and assumptions upon which opinion is based; (a) Personal history of the testator and family relationships; (b) General medical history; (c) History of cognitive decline or psychiatric history, if relevant;7. Opinion ( a) Diagnosis, including a rating of severity of cognitive impairment if possible;

(b) Outline legal tests for will-making capacity & address each element separately;8. Conclusion (N.B. if the opinion is incomplete or not a concluded opinion, codes of

conduct usually require a statement to that effect); and9. References (codes of conduct usually require that any literature or other materials

utilised in support of the opinions are outlined).

4. 9. 5. 2. The criteria for will-making capacity and how to assess themWhile the Banks v Goodfellow186 criteria for defining will-making capacity remainthe established law, a need to go beyond those criteria has been identified recentlyin the international literature. Shulman, Cohen and Hull have commented:

Many cases of challenges to testamentary capacity involve complex andsubtle issues that call for a need to go beyond the traditional Banks vGoodfellow criteria. Lawyers and expert assessors need to ensure that theytake into account the capacity to appreciate the consequences of executing awill especially in suspicious circumstances where there has been a radical

185 Ibid.186 (1870) LR 5 QB 549, 565.

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change to a will in the context of a complex or conflictual environment orwhere there is evidence of a significant medical/neurologic condition.187

Our understanding of psychopathology and cognition, and our expectations ofwill-makers today compared with those in 19th century England have evolved.This has had most impact on the criteria for knowledge of the nature and extent ofassets (the threshold for which has been lowered) and for recalling andunderstanding the claims of potential beneficiaries (the threshold for which hasrisen).

As noted earlier, in Kerr v Badran, Windeyer J acknowledged the current dayreality of understanding of assets which has in effect dropped the threshold for awill-maker to understanding the extent of their assets.188 In contrast, the NewSouth Wales Court of Appeal case, Read v Carmody, may have raised thethreshold for the appraisal of the claims of beneficiaries. 189 It was a case in whichthere were many who could qualify as the objects of the will-maker’s bounty, fewof whom were included in the his final will which was made only two days afterhis second last will. The matter was resolved by the trial judge finding, and theCourt of Appeal upholding that finding, that the will-maker had will-makingcapacity when he made his final will.

In that case Powell JA restated the Banks v Goodfellow criteria.190 His morecomplex description for the criteria for capacity has been modified into a set ofquestions for clinicians. These are as follows:191

1. Is it likely that any impairment was present which may have compromisedthe deceased’s capacity with respect to an awareness and appreciation ofthe significance of the act of making a will?

2. Is it likely that any impairment was present which may have compromisedthe deceased’s capacity with respect to awareness in general terms of thenature and extent of his estate?

3. Is it likely that any impairment was present which may have compromisedthe deceased’s capacity with respect to an awareness of those who mightreasonably have been thought to have a claim on the deceased’s

187 Shulman, Cohen and Hull, (2005) op. cit. (footnote 1), pp. 67-68.188 [2004] NSWSC 735, [49].189 (Unreported, NSW Court of Appeal, Meagher, Powell and Stein JJA, 23 July 1998) BC9803374.190 Ibid. p 4.191 Bennett, H.P., and Hallen, P., “Dementia, cognition and testamentary capacity.”, Brain Impairment,

(2004) 5: 69-70.

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testamentary bounty?

4. Is it likely that any impairment was present which may have compromisedthe deceased’s capacity with respect to ability to identify, evaluate anddiscriminate between the respective strengths of the claims of suchpersons?

5. Is it likely that any disorder of mind such as delusions and hallucinationswhich would influence the deceased’s awareness of facts or reasoning anddecision making ability specifically with regard to the above fourcapacities.

As with other capacities, the assessment of will-making capacity has task-specificelements as outlined by the four specific criteria for defining capacity, andsituation-specific elements depending on the individual circumstances of thecase.192 The job of the expert is to take both into consideration. While each of thecriteria which define will-making capacity requires specific cognitive skills, thethreshold of cognitive deficit which might preclude capacity will vary according tothe complexity of the estate and the way it is disposed of in the will. The followingparagraphs outline the skills specific to each of the criteria and their practicalapplication to guide health care professionals in their assessment.

4. 9. 5. 3. Awareness and appreciation of the significance of the act of making awillThis concept is stored in long term memory or what is considered “crystallized” or“old”. It is therefore unlikely that such "old" knowledge is lost until very latestages of a dementing illness.

4. 9. 5. 4. Awareness of the nature and extent of the estateSince Kerr v Badran193, the standard for knowledge of estate has been lowered to“bear on existing circumstances in modern life” where older people living todaymay well be aware that they own substantial shareholdings or real estate but nothave an accurate understanding of the value or addresses of those assets. Someten years ago this approximation of assets was advocated by American experts inthe field who suggested that a testator understand in a “general way” the extent ofproperty and its form, for example, cash, bonds, real estate, and “not necessary

192 Shulman, Cohen and Hull, (2005) op. cit,(footnote 1), p. 64.

193 [2004] NSWSC 735.

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exact dollar figure in mind as to net worth but in general way should knowwhether has substantial amount or very little”. 194

Notwithstanding the lowering of the required legal standard, the requisitecognitive skills will depend on situation-specific factors about the nature of theestate. If the estate is simple and little has changed over the years, for example,ownership of the family home plus one longstanding real estate investment, thewill-maker can rely on often-preserved crystallised, long term memory. Thus,knowledge of assets may be retained well into the course of established dementia.Difficulties arise when there have been recent changes in real estate orshareholdings, for example, sales or gifts of real estate to family members, duringthe course of dementia. Early deficits in short–term memory, seen particularly inAlzheimer’s disease, may cause recent significant changes in assets to be forgottenwhen the will-maker gives instructions as to how their estate is to be distributedunder their will.

Other functions which may be important to knowledge and distribution of estateinclude “calculia”, which is the ability to calculate and manipulate numbers,particularly if more than simple distribution of assets is involved. In Grynberg vMuller; Estate of Bilfeld, a wealthy testator was described by the solicitor whotook instructions as “having difficulty with ‘how many zeros’ ” to be included inthe gift to one of her beneficiaries. The solicitor also said he had to explain toexplain to his client “what $150,000 was vis a vis zeros”.195 In another case a will-maker made a complex fractional distribution of her estate and changed thosefractions when she made new wills. Windeyer J regarded the change of fractionsas significant and noted that “the changes between the 1990 and 1993 wills arequite difficult to comprehend” and criticized the solicitor for drafting the will inthis way.196

4. 9. 5. 4. Awareness of those who might reasonably have been thought to have aclaim on the deceased’s testamentary bountyThis criterion relies mostly on long-term memory which is usually retained wellinto the course of dementia. Problems arise when important potentialbeneficiaries, for example siblings of the will-maker die during the course of thedementia and the will-maker is unable to recall this. Again, situation-specific

194 Sprehe, D.J., Kerr, A.L. (1996) Use of legal terms in will contests: implications for psychiatrist. Bulletin

of the American Academy of Psychiatry and Law 24: 255-265. For some US cases taking this

approach see, Estate of Romero 126 P. 3d 228 (2005) and Will of Khazaneh 834 N.Y.S. 2d 616

(2006).

195 [2001] NSWSC 532, [33]. As to a reference to the will-maker’s “dyscalculia”, see [56].196 Robinson v Spratt [2002] NSWSC 426, [30], [40 and [41].

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issues can make the task easy or difficult for a will-maker with dementia. Clearlythe task of remembering who are the proper objects of one’s bounty is easier for awill-maker with dementia who has only one living relative or consistentbeneficiary compared with a will-maker with dementia who has consistentlydivided their estate among a substantial number of beneficiaries.

4. 9. 5. 5. Capacity with respect to ability to identify, evaluate and discriminatebetween the respective strengths of the claims of such personsMost wills are challenged on the basis of the will-maker’s capacity to identify,evaluate and discriminate between the respective strengths of the claims of theirpotential beneficiaries. This is perhaps the most complex task for the will-maker,particularly since Read v Carmody.197 An approach198 to the assessment of thiscrucial aspect of capacity is based on the examination of the following pieces ofevidence:

1. The history of disposal or the will-making pattern. This is because previouswills may demonstrate an enduring and stable pattern of bequests andreflect views held by the will-maker prior to any significant deterioration intheir mental state. This history may also reflect a person's “highest orderpreferences”.199 When assessing this aspect of will-making capacity, theexpert should reflect on the original Banks v Goodfellow concept: Is this adisposal which, if the mind had been sound, would not have been made?Suspicion as to incapacity is aroused when a will-maker revokes prior willsand executes entirely different dispositions during a period of mentalenfeeblement.200 Posener and Jacoby emphasise the fundamentalimportance of the will-maker being aware that their new will revokes theirprevious will and the need for the will-maker to be aware of the differencesbetween the old will and the new will and to be able to explain the rationalefor the changes. 201

2. The terms of the will. This is because an inference of capacity may bederived from the will itself. Where the will is inofficious, that is where noprovision, or an apparently inadequate or unfair provision, has been madefor those who ought to be the objects of the will-maker’s bounty then fuller

197 (Unreported, NSW Court of Appeal, Meagher, Powell and Stein JJA, 23 July 1998) BC9803374.

198 Peisah, C. (2005) Reflections on changes in defining testamentary capacity InternationalPsychogeriatrics 17 (4): 709-712.199 Davis, J.K. (2002) The concept of precedent autonomy Bioethics 2002; 16:114-133.200 Bailey v Bailey (1924) 34 CLR 558, 571.201 Posener HD, Jacoby R (2002) Testamentary capacity. In Psychiatry in the Elderly 3rd Ed Jacoby R,Oppenheimer C (Ed) Oxford University Press: Oxford: 932-940. p

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and clearer evidence of capacity is required.202

3. The will-maker’s appraisal of their potential heirs. As was discussed inChapter 2, many of the neuropsychological deficits typically associatedwith common forms of dementia, with or without complicating paranoidideation, may render a person with dementia unable to appraise their pastand present relationships. The findings of the association between familyconflict and dementia discussed in Chapter 2 suggest a need to obtain verycareful histories of family relationships when making assessments ofcapacity to execute a will. The rationale behind changes in such documentsshould be carefully scrutinised, particularly if there are changes in anestablished pattern of trusting or favouring certain family members. Thus,to ensure ill-feeling towards family members is not contaminated bydementia, in situations involving complex and conflictual issues amongstpotential beneficiaries, the will-maker should show an awareness of theseissues and provide the rationale for the disposition, or as is most often thecase, the change in the disposition.203

4. 9. 5. 6. Disorder of mind such as delusions and hallucinationsAs originally outlined in Banks v Goodfellow, psychotic symptoms are onlyrelevant to the will-making process if they impact on the act of disposition.Probably the best example of the impact of relevant delusions is the previouslydiscussed case of Timbury v Coffee in which an alcoholic will-maker suffereddelusions which caused him to believe his wife was unfaithful.204 Thesepsychotic symptoms influenced testamentary dispositions which were heldinvalid.

That was a fairly clear-cut case but sometimes the role of the expert inclarifying the significance of abnormal ideas is more complex than that. First,the line between unreasonable beliefs and delusional beliefs associated withpsychotic thinking is sometimes hard to define. Delusions and non-delusionalbeliefs are best conceptualised as a spectrum rather than a dichotomousphenomenon. A person may hold “over-valued ideas” which are unreasonableand sustained beliefs maintained with less than delusional intensity butpotentially capable of poisoning affections if pervasive and persistent. Second,while delusions are usually false beliefs (and can often be diagnosed as such bytheir very implausibility), they are not invariably so. Rather their hallmark isthat they are held on inadequate grounds; that is the belief is not arrived at

202 Brown v M’Enroe (1890) 11 NSWR Eq 134, 138.203 Shulman,K, Cohen, C and Hull, I,(2005) op.cit, (footnote 1), p 68.

204 (1941) 66 CLR 277.

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through normal processes of logical thinking. This is important because onecannot always rely on the bizarreness or lack of veracity of a belief to establishits pathological nature. For example, a will-maker may accuse his wife, withwhom he is in business, of theft, sabotage or sexual liaisons, but it is only thebasis upon which he arrived at these beliefs that will distinguish whether or notthey are pathological.

4. 9. 6. Experts in courtIn recent judgments judges have downplayed the role of expert witnesses in courtproceedings relating to will-making capacity, particularly the role of those expertwitnesses who have never seen the will-maker. In Revie v Druitt, Windeyer Jnoted:

As I have pointed out quite recently in Kerr v Badran205, lay evidence ofthe activities, conversations, family circumstances and relationships of thedeceased and evidence from doctors, often general practitioners who weretreating doctors during the lifetime of the deceased, usually is of far morevalue than reports of expert specialist medical practitioners who have neverseen the deceased.206

Young J commented on Kerr v Badran in the Australian Law Journal in thefollowing terms; "The clear message [from Kerr v Badran] is that often presentingsuch psychiatric evidence is a waste of time and money".207 A more detaileddiscussion of the cases on this matter is found in 4. 9. 1 above.

Ferguson and others examined the key influences on the judgment and found thatthe judge explicitly placed most weight on the lay evidence. They noted that 37%of the references made by the judge about aspects of the aphasic will-maker’scommunication were to family members’ evidence, 23 % to the solicitor’sevidence, 20% to the general practitioner’s evidence and 8.6% to the evidence ofthe psychiatrist and neuropsychologist. 208 The authors noted that the judge“explicitly placed most weight on lay accounts, making use of expert opinionsonly to check if any reconsideration was required”.209 The authors concluded thatthis attested to the “high social validity of detailed eye-witness accounts”. 210

It is beyond the scope of this book to discuss the detailed law relating to expertwitnesses and the admissibility of their evidence. However, as Freckelton has

205 [2004] NSWSC 735 [57].206 [2005] NSWSC 902 [34].207 “Wills: Capacity – Assessment” (2004) 78 ALJ 720, 721.208 Ferguson A, Worrall. L., McPhee J., Buskell, R., Armstrong, E, Togher L. “Case study -Testamentarycapacity and aphasia: A descriptive case report with implications for clinical practice”, Aphasiology (2003)17 (10) ,965-980.p 973.209 Ibid. p 976210 Ibid. p 975

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pointed out, “there is a begrudged dependency by the courts and tribunals inrespect of expert opinions. The role of expert report writers and witnesses isfundamental to the resolution of many forms of civil litigation”.211 In New SouthWales in particular the judges are encouraging the court appointment of witnessesand communication between the expert witnesses for the different parties in acourt matter.4. 10. Court authorised (statutory) willsIn each State and Territory the Supreme Court may grant leave to any person toapply to the Court for it to make, alter or revoke a will for any adult and, exceptfor Western Australia, any person under 18 years of age who lacks capacity tomake their own will.212 The Court must approve the specific terms of the will to bemade or of the alterations to be made to the existing will.

In New South Wales, before the Supreme Court will authorise a will, it must besatisfied that the applicant for leave is an appropriate person to make theapplication and that adequate steps have been taken to allow representation of allpersons with a legitimate interest in the application including those who havereason to expect a gift or benefit from the estate of the person the application isabout. Then the Court must be satisfied that:

1. there is reason to believe that the person the application is about is, or isreasonably likely to be, incapable of making a will,

2. the proposed will, alteration or revocation is, or is reasonably likely to be,one that would have been made by the person if they had testamentarycapacity, and

3. it is or may be appropriate for the order to be made.

The Queensland, Tasmanian and Australian Capital Territory provisions areessentially the same as those of New South Wales.213 So too are the SouthAustralian. There the Court may authorise the making, alteration or revocation ofthe will if it is satisfied that the proposed will, alteration or revocation wouldaccurately reflect the likely intentions of the person if they had testamentary

211 Freckelton, I, “Doctors and Forensic Expertise” in Freckelton, I and Petersen, K, Disputes andDilemmas in Health Law, Sydney, The Ferderation Press, 2006, 406. Freckelton’s chapter deals with thelaw relating to expert witnesses and the current debate about the role of expert witnesses in the justicesystem.212 Succession Act 2006 (NSW) ss 18 and 19; Succession Act 1981 (Qld) ss 21 and 22; Wills Act 1936 (SA) s7; Wills Act 2008 (Tas) ss 22 and 23; Wills Act 1997 (Vic) s 21 (s 21(1) effectively allows for the alterationof a will by the Supreme court ; Wills Act 1970 (WA) s 40 and s 41 effectively requires leave of the Court;Wills Act 1968 (ACT) s 16A; Wills Act (NT) ss 19 and 20.213 Succession Act 1981 (Qld) ss 21-28. As to the matters the Supreme Court must consider, see s 24 of theAct. Wills Act 2008 (Tas) s 21-28, s 24 in particular. Wills Act 1968 (ACT) s 16E(b). See generally ss 16A-16I.

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capacity.214 In Victoria, there is a further variation on the wording used. Before theSupreme Court of Victoria may authorise a statutory will, or revoke an existingwill, it must be satisfied that the proposed will or revocation reflects “what theintentions of the person would be likely to be, or what the intentions of the personmight reasonably be expected to be, if he or she had testamentary capacity”.215

In Western Australia there is also a variation in the language used. The SupremeCourt must refuse the application unless it is satisfied as to the statutory criteria,including that the suggested will, alteration or revocation “is one which could bemade by the person concerned” if they had capacity.216

In the Northern Territory, the Supreme Court “must refuse to grant leave to makean application” unless the proposed will or alteration or revocation of a will is, ormight be, one that would have been made by the proposed testator” if he or shehad [will-making] capacity.217

Since February 2008 a plenary guardian or a plenary administrator has been ableto apply to the Supreme Court of Western Australia for an order to make a will forthe person they are the guardian of or whose estate they administer.218 It is likelythat a Supreme Court elsewhere in Australia would consider that an appointedguardian, enduring guardian, an attorney under an enduring power of attorney oran appointed administrator or financial manager was an appropriate person tomake such an application, unless there was some other reason to exclude them in aparticular case.

As noted earlier in this chapter, the South Australian provisions about statutorywills have been use to have the South Australian Supreme Court revoke a will onthe grounds that a person who had lost will-making capacity would not want a willshe made benefiting a man who took advantage of her when she was under hisinfluence to remain unrevoked.219

The first New South Wales case to deal with statutory wills, Application of J. R.Fenwick and Re Charles220, involved an application about a 60 year old man withserious acquired brain injury and an 11 year boy who suffered severe and

214 Wills Act 1936 (SA) s 7. For an example of an application for an order to make a statutory will see,Hoffman v Waters [2007] SASC 273and Brown v Brown [2009] SASC 345.215 Wills Act 1997 (Vic) s 26(b). See ss 21-30 generally. For some examples see, Boulton v Sanders [2004]VSCA 112, (2004) 9 VR 495, State Trustees Ltd v Hayden [2002] VSC 98 and State Trustees Limited v Doand Nguyen [2011] VSC 45.216 Wills Act 1970 (WA) s 42(b). See ss 39-47 generally.217 Wills Act (NT) s 21(b).218 Guardianship and Administration Act 1990 (WA) s 111A.219 Public Trustee v Phillips [2004] SASC 142. See 4. 8.220 [2009] NSWSC 530.

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irreversible brain damage when he was four months old. Palmer J, who heardthese applications, used the occasion as an “opportunity to explore some of theprinciples which should guide the Court in applying these new statutoryprovisions”.221 He divided the cases that could arise under the legislation into threecategories. First, “lost capacity cases” like the case of the 60 year old man whohad made a will, but who could no longer change it or make a new one because ifhis acquired brain injury. Second were the “nil capacity cases” like that of the 11year old boy. Third were the “pre-empted capacity” cases; those in which aperson, still a minor and therefore lacking formal testamentary capacity, was oldenough to form relationships and to express reasonable wishes about propertybefore losing testamentary capacity. Palmer J gave as an example, a 17 year oldperson who suffered severe and permanent brain injury as a result of a motorvehicle accident and who was subsequently awarded large damages.222

After discussing the background to the legislation, he went on to state that inrelation to the provision in the Succession Act 2006 (NSW), “the proposed will,alteration or revocation is, or is reasonably likely to be, one that would have beenmade by the person if they had testamentary capacity”:

[The] Court should start ‘with a clean slate’; it must interpret thewords of the section in the light of the problems and difficultieswhich the legislation seeks to remedy, bearing in mind thatlegislation of this kind should receive a benevolent construction.223

In relation to lost capacity cases, he suggested that the Court ought not to startwith a presumed intention against intestacy. Rather, it must be satisfied by theevidence that it is “reasonably likely” – in the sense of “a fairly good chance” –that the person would have made a will at some time or other, had they not losttheir will-making capacity.224

In relation to the “nil capacity” cases Palmer J thought that the Court must startfrom a position that, if there were significant assets in the minor’s estate, the Courtshould authorise some kind of statutory will unless it was satisfied that whatwould occur on intestacy would provide adequately for all the reasonable claimson the estate.225

221 Ibid. [5].222 Ibid. [28].223 Ibid. [148]. See Succession Act 2006 (NSW) s 22(b).224 Application of J. R. Fenwick and Re Charles [2009] NSWSC 530 [166].225 Ibid. [172].

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Palmer J granted the application to authorise the proposed codicil, thus altering MrFenwick’s will.226 He also granted the application to authorise the proposed willfor the 11 year old boy thus making a will for him.227

The circumstances in which statutory wills are used and some of the relevant caselaw is set out elsewhere.228 In the United Kingdom, court authorised or statutorywills are now made under the Mental Capacity Act 2005 (UK). That Act providesthat an act done, or decision made, under it for or on behalf of a person who lackscapacity must be done, or made, in their best interests.229 The judges makingstatutory wills under that Act consider that it replaced the notion of substitutedjudgment, which is reflected in the Australian legislation, with an objective test asto what was would be in the best interests of the person who had lost capacity.230

4. 11. ConclusionOver a century later, Banks v Goodfellow remains the formal authority in will-making capacity, because of its flowery language and because it was ahead of itstime in terms of its insight into the various components of will-making capacityand respect for the notion that the mere presence of mental disorder does not, ofitself, preclude capacity. However, will-makers have changed, as has ourunderstanding of the kind of conditions which impair a person’s ability to make avalid will. Will-makers are more likely to be older and their wills are less likely tobe challenged on the basis of delusions. They are more likely to be challanged onthe basis of deficits in the cognitive skills of memory, judgment and reasoningcrucial to the will-making process. There is a myriad of ways in which deficits insuch skills may impact on the will–making process and this is further complicatedby the situation specific aspects of each individual case. The law has also evolvedto some extent with an acknowledgement of the increasing complexity of estatesand the corresponding lowering of the threshold for knowledge of assets. Further,some acknowledgement has been given to the fact that comprehending andappreciating the claims to which one ought to give effect requires more than justknowing who one’s beneficiaries are, but rather weighing and discriminatingbetween potential claims.

226 Ibid. [219].227 Ibid. [261].228 Hockley, J, “Statutory wills in Australia: Wills for persons lacking capacity” (2006) ALJ 68. For morerecent cases, see not only Application of J. R. Fenwick and Re Charles [2009] NSWSC 530, but also, ABCB [2009] NSWSC 680; Re Estate of Crawley [2010] NSWSC 618; Rak v Rak [2009] SASC 288; Brown vBrown [2009] SASC 345; Deecke v Deecke [2009] QSC 65; AB v CB and others [2009] NSWSC 680 andPayne v Smyth as Litigation Guardian for Welk [2010] QSC 45.229 Mental Capacity Act 2005 (UK) s 1(5).230 See for example Re P (Statutory Will) [2009] EXHC 163 (Ch) and VAC v JAD [2010] EWHC 2159 (Ch)also cited as Re D [2011] 1 All ER 859.

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Clearly, the determination of capacity is far more complex today than reflected inthe traditional Banks v Goodfellow criteria. As stated by Shulman et al:

It is time for the medical and legal professions to move to new level indealing with an important growing societal concern – the fundamental rightto make a Will in a competent frame of mind.231

231 Shulman et al, (2005) op cit. , p68.