Lawcovernotes August 2017

Doesmy client have the capacity to make awill? A recent decision provides practical guidance for solicitors where testamentary capacitymay be doubtful. It is a difficult situation for a solicitor: you have a client wanting to make a will but you are unsure whether they have testamentary capacity. The recent decision of Robb J in Estate of Beryl Lee Hordern (Deceased); Homersham v Carr [2017] NSWSC 753 provided some good practical guidance for practitioners facing this scenario. In that case the solicitor first met Mrs Hordern, a 76-year-old woman, in December 2003. Around the middle of March 2004, Mrs Hordern told the solicitor she wanted to make a will leaving everything to Cynthia, her friend and former cleaner. The solicitor was aware that a previous will left everything to her niece, who lived overseas, and asked why she was making such a drastic change. Mrs Hordern said that her niece had ‘disgraced herself with comments about my sister (her mother)’ and did not deserve anything. The solicitor was also aware that Mrs Hordern had recently been assessed by her doctor, a specialist in geriatric medicine. The solicitor contacted the doctor and asked for his opinion on her capacity to make a new will. The doctor told him that he had only seen her once for a one-hour assessment and was a little concerned about her wellbeing. He thought she may be suffering dementia or drinking too much, perhaps both. When he saw her she did not appear to know her address or remember her birthday. However, the doctor was not prepared to say that Mrs Hordern lacked testamentary capacity. On 5 April 2004 the solicitor, together with another solicitor from his office, took the will he had prepared to Mrs Hordern’s home. He asked Mrs Hordern a number of simple questions, including: ^ ^ What is a will? ^ ^ How much is your estate worth? ^ ^ What blood relatives do you have? ^ ^ Does Cynthia know who you are leaving your estate to? 10. The solicitor made a file note of the questions and answers. Mrs Hordern’s answers were not perfect – for example, she did not appear to know precisely what her assets were but was clear that she wanted to make a will leaving everything to Cynthia. The will was executed.