Lawcovernotes August 2017

Mrs Hordern died in 2014 and her niece successfully challenged the 2004 will on the basis that her aunt lacked testamentary capacity. Significantly, the Court found that Mrs Hordern was suffering from a delusion in relation to her niece at the time the 2004 will was executed. Robb J did not, however, criticise the solicitor for his actions in preparing the will, stating: “It is not part of the professional duty of a solicitor to ensure that his or her client has testamentary capacity, so that any will made by the client is valid. The solicitor is not an insurer for the validity of the will, but can only act with reasonable diligence. Where, as in the present case, a court later finds on all of the evidence that a client who suffered at the time from moderate to serious dementia was in fact actuated by some false belief concerning the entitlement of an existing beneficiary under a former will, and that the existence of that delusion, albeit not an insane one, has vitiated the client’s testamentary capacity, the responsibility for that outcome should not be laid at the feet of a careful solicitor” (at [205]). When testamentary capacity is in doubt a solicitor must act carefully and diligently. Here are some practical tips: ^ ^ Allow plenty of time ^ ^ Take instructions directly from the testator, not via an intermediary ^ ^ If possible, obtain a medical opinion (with the client’s consent), but remember that a diagnosis is not determinative of lack of testamentary capacity ^ ^ Ask open-ended (not leading) questions, going to the Banks v Goodfellow test ^ ^ Ask why the client ismaking changes to any previous will ^ ^ Take full notes and keep them with the executed will Unless convinced that the client lacks testamentary capacity, you should allow the client to make the will. Jen McMillan Legal Practice Consultant 11.