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Assessing testamentary capacity – who does it better? Lawyers or doctors?

Dr Kelly Purser

Overview

• Capacity in Australia

• Methodology

• The current capacity assessment environment and medico-legal relationship

• The evidence of each profession in court

• Way forward – suggestions

Context • Australians - one of the longest life expectancies worldwide • Incidences of dementia are projected to triple to around 900,000 by

2050• About 1/3 of people with dementia will suffer from delusions which

could affect testamentary dispositions

Ageing population

Mentally disabling

conditions

Increase in assessments

Methodology• Doctrinal analysis current legal position

– Secondary sources, cases, legislation• Empirical research

– Practising (specialist) lawyers and doctors surveyed, interviewed– 20 doctors Australia wide– 10 lawyers Australia wide

• Thematic analysis• Suggestions made

Current approach to assessments in Australia

• No nationally accepted assessment guidelines/principles

• Assessments undertaken on an ad hoc basis– Jurisdiction and practitioner– Interdisciplinary

• Terminological and methodological miscommunication

The relationship between legal and medical professionals

Both professions: But, lack of:

Shared knowledge

Commonality of approach

Communication/ terminology

Guidelines

Positive about other profession

Respect for other profession

Try and get it right

Increasing involvement of medical professionals

‘In those days you could make a simple will, but now I believe it’s beyond the capacity of the average lawyer to make a reasonable will for most people, particularly people in business. … So getting back to what, look I think there are so many lawyers who make wills who are not really competent to make them.’

‘Regularly we used to get on the lookout for quite well dressed people coming into the wards and making mischief ...’

• Who should assess?• Training?• How assess testamentary capacity?• Legal v medical notions of capacity?

Lack of (meaningful)

• Instructions• Assessments • Evidence

‘The solicitor believed that the

guy had capacity but he gets a

negative report from the treating

psychiatrist. But, in my view, the letter from the treating psychiatrist, on its own, would be thrown out by the court because it just virtually dot points those points that are mentioned in Banks v Goodfellow. It doesn’t go on to talk about them.’

Banks v Goodfellow (1870) LR 5 QB 549Testator must:1. Understand the nature of the act and its effects2. Understand the extent of property he/she is disposing of3. Comprehend and appreciate the claims to which he/she ought to give effect4. No disorder of the mind … no insane delusion

‘

Evidence, litigation and liability

• Expectation and fear of involvement– Participant in litigation– Subject of litigation

• Traditional preference for evidence of lawyers– Legal question – Can fuel professional tension

Law = process and participation

Law = hostility and non-

cooperation

Preferred evidence?

• Middlebrook v Middlebrook (1962) 36 ALJR 216– The solicitor's evidence, that a client was able to provide clear instructions to

make a will two days before the testator died of cancer, was preferred to evidence given by medical staff caring for the testator

– Despite the doctor stating that the testator was under the influence of drugs and sedatives

• Zorbas v Sidiropoulos (No 2) [2009] NSWCA 197– ‘... the most valuable evidence is usually given by the experienced solicitor who

witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical or hospital notes’ [at 89]

Medical evidence

• Clinical independence and skills should be respected• Not conclusive in courts of the existence of capacity• Ultimately a decision for the court• Considered in conjunction with all available evidence• Potentially highly relevant but lay evidence could provide same understanding • Not depend on scientific or legal definition• Common sense judicial determination • Not relieve solicitors from responsibility to make own inquiries/keep

appropriate records• Increasing requests for medical professionals to provide ‘expert’ opinions

‘Expert’ medical opinion?• Ill-defined and arguably ‘inconsequential’ • Evidence of treating physician may be preferred because

– Long standing relationship– Able to better assess any cognitive, behavioural or emotional changes– It is ‘of far more assistance than the evidence of expert psychiatrists who

did not see or treat the deceased’: Kerr v Badran [2004] NSWSC 735 (17 August 2004) [at 39]

• Individual circumstances• Cost • Training

Contemporaneous evidence

‘A doctor really can’t do a retrospective assessment unless there was absolutely clear-cut evidence that the person was not competent.’

• Can outweigh the evidence of others, despite medical qualifications, who have not observed the testator at the relevant time: Tobin v Ezekiel [2011] NSWSC 81 [at 32]

Recent example

• Sargent & Anor v Brangwin [2013] QSC 306• Testator not truthful about illnesses• Solicitor unaware of how ill testator was – no medical report re capacity• Geriatrician provided retrospective report• Wrong assumptions, factual errors, partialities, seeking evidence to

support conclusions rather than making objective assessment • Significance of correct factual basis and contemporaneous report

Way forward

Guidelines

Model of assessment – interdisciplinary

Nature of the report

Training

Legal and medical professionals

Obtain (and rely on?) medical (expert?) opinion

Instructions

Evidence

Professional liability concerns

Contemporaneous evidence

Quality

Who

Cost

Thank you

Purser, K, ‘Assessing Testamentary Capacity in the Twenty-First Century – Is Banks v Goodfellow Still Relevant?’ University of New South Wales Law Journal (forthcoming 2015)

Dr Kelly PurserLecturer   Australian Centre for Health Law Research Faculty of Law, Queensland University of TechnologyEmail: k.purser@qut.edu.au  Website: http://staff.qut.edu.au/staff/purserk/Centre website: www.qut.edu.au/research/achlr