Dementia & Testamentary Capacity in New South Wales

Dementia is a complex and progressive condition that impacts cognitive functions, including memory, reasoning, and communication. As the population ages, dementia’s prevalence increases, making it a critical issue in various aspects of life, including legal matters. One such area is testamentary capacity – the ability to make a valid will. In New South Wales understanding the intersection of dementia and testamentary capacity is essential for ensuring that the wishes of individuals with dementia are respected and legally recognized.

Understanding Testamentary Capacity

Testamentary capacity refers to a person’s legal and mental ability to create or alter a will. In NSW, the requirements for testamentary capacity are well-established and are rooted in common law principles. A person must:

  1. Understand the nature and effect of making a will.
  2. Comprehend the extent of the property they are disposing of.
  3. Be aware of the people who might have a claim on their estate (i.e., beneficiaries).
  4. Not be suffering from a disorder of the mind or delusion that influences their decisions regarding the disposition of their property.

These criteria were famously articulated in the case of Banks v Goodfellow [1861-73] All ER Rep 47, and remain the cornerstone for assessing testamentary capacity in NSW.

Dementia and Its Impact on Testamentary Capacity

Dementia can severely impact a person’s cognitive abilities, potentially affecting their testamentary capacity. However, a diagnosis of dementia does not automatically mean that an individual lacks the capacity to make a will. Capacity can fluctuate, and a person with dementia may have lucid intervals during which they possess the necessary understanding to create or amend a will.

Assessing Testamentary Capacity

Given the complexities of dementia, assessing testamentary capacity requires careful consideration. Legal professionals often seek medical opinions to evaluate a person’s cognitive state. Doctors, particularly those specializing in geriatrics or psychiatry, can provide crucial insights into whether the person understands the nature and consequences of their decisions regarding their will.

In NSW, if a will is contested on the grounds of lack of testamentary capacity, the Court will need to determine whether the person met the legal criteria at the time the will was made. This process can involve expert opinions, medical records, as well as evidence from those who interacted with the person at the time.

Practical Steps for Ensuring Valid Wills

To minimize disputes and ensure that the wills of individuals with dementia are upheld, several practical steps can be taken:

  1. Early Planning: Encourage individuals to create or update their wills while they are still in good health and capacity.
  2. Medical Evaluation: Obtain a comprehensive medical assessment close to the time the will is made to document the person’s cognitive state.
  3. Legal Guidance: Seek advice from legal professionals experienced in elder law and estate planning to ensure all legal requirements are met.
  4. Clear Documentation: Maintain detailed records of the person’s intentions, the drafting process, and any medical evaluations conducted.

Where a person has been diagnosed with dementia steps should be taken to make a Will, as well as a power of attorney and appointment of guardian documents as soon as practicable.  While dementia poses challenges to testamentary capacity, careful planning, thorough assessment, and professional guidance can help ensure that the wishes of individuals with dementia are legally recognized and respected in NSW.

Segelov Taylor Lawayers are able to assist in the preparation of Wills for people with Dementia, and have significant experience in cases dealing with testamentary capacity.

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