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John Mann providing Q & A on the Chris Smith Afternoon Show discussing Estate Law

What does it mean to have the capacity to make a will?

Tuesday, 8 August 2017 

Chris /JM – John Mann /C1,2,3, etc – Callers


Chris   Well while we’re often told that it’s important to have a will prepared as early as possible, many of us leave it to the very last minute, but in doing so those around us may ask questions about for instance our mental capacity at the time of drawing it up. No she or he did not have the mental capacity so its not worth the paper its written on and I’ll tell you why. And its something that’s disputed quite often. So, what does it mean to have the capacity to make a will? And if we think someone didn’t have the capacity what should we do? We’ll be answering these questions in a short while when we talk to our guest John Mann, an accredited specialist in wills and estates and property law based in the Penrith office of Turner Freeman. We’ve also got that $100 Westfield voucher to give away as we normally do. And Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation, disability claims, family and employment law, wills and estate and property law, offices in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. Also in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. John, welcome to the program once again.

JM       G’day Chris

Chris    Fantastic, now what does it mean to have the capacity to make a will? Is it all about just the mental capacity?

JM       Pretty much. The tests where you have capacity to make a will actually arise from a 19thcentury English court decision called Banks and Good Fellow. It identifies 4 elements that you have to fulfil, to have capacity to make a will. Firstly you have to understand what a will is, secondly you have to understand what your property is, what your assets are, thirdly you have to understand what the persons in your life who you might reasonably expect to make provision for and fourthly you should not be suffering from any disease of the mind or delusion that might affect your ability to make the will.

Chris    If you’ve got a question on this or anything related to wills and estate law, 131873, jump in as I say, I’ve got that $100 voucher from Westfield as well. How is capacity determined? Lawyer determines someone’s capacity on their own or do they need some kind of psychiatric help with that?

JM       It’s a complicated process and as we get older, and as medical science helps us to live longer, our mental capacity does not always keep up with it. Ummm commonly people develop conditions like Alzheimer’s whether that’s mental or some other disorder of the mind that affects on how we operate day to day.

Chris  – So when that person is insistent on changing their will do they go to a psychiatrist or two so they can clarify that they have the capacity?

JM – Very often Chris, when solicitors are confronted with an elderly client who might give rise to some suspicion in the solicitor’s mind, they may not have the capacity. Yes, they will refer them to a doctor to be assessed. Even then, an assessment just by a GP may not be enough because a doctor  says “oh yes that person did this the other day and we spoke at length about so-and-so” but it may not still fulfil that test that I said at the outset.

Chris – And so therefore it opens the door to disputes down the track?

JM – It certainly does and it seems to be becoming more common in the courts. They’re very very expensive. They’re often very difficult cases because someone is going to get something and someone is going to miss out.

Chris – But a good lawyer will give you that advice surely? That maybe you’re of 90 odd years of age and although you’re of sound mind and you want to change your will we should get a second opinion about your capacity, that’s almost like an insurance policy, isn’t it?

JM – Pretty much, yes, but the observations of the solicitor and the notes the solicitor takes at the time that they speak to the person are also very important evidence in cases of this sort. But the way that cases are moving, predominantly the judges are giving a lot of weight to what experts like psychogeriatricians will say.

Chris – Pyschogeriatricians, right?

JM – These are people that may not have even met the deceased, but they’re given all of the evidence that in the case behaviour of the person, all the affidavits that have been given, may, out of that derive a conclusion as to whether or not that test has been fulfilled.

Chris – If someone is suffering from dementia and they don’t have a will and the family realise that, what do the family members do about that?

JM – There’s little they can do. You have to have capacity to make the will. There are some limited circumstances where the court can make a will for the person who doesn’t have capacity, but that’s not necessarily something that is very easily obtained.

Chris – Ok, let’s go to some callers – 131873. It’s a very interesting part of the law, and especially when it comes to estate law, it can lead to disputes and it’s better to be safe than sorry  and have specialised advice no doubt beforehand so that you can strengthen the will that you make. Jewell, go right ahead – John is listening.

Jewell (caller 1) – Oh thank you Chris, and thank you John. Ummm, John – My husband and I have enduring powers of attorney made up for each other, if I go back he looks after and visa versa. We’re getting to an age where we think it might be sensible to have our eldest son have the enduring power of attorney. You know, I’ve been thinking about situations if we had an accident or something and weren’t able to manage our affairs. My question is – do we have to get that witnessed by a lawyer, because I know you used to be able to get printed ones from the ummm, and I’m starting to realise this could be disputed too because someone has to say that we are of sound mind, don’t they?

JM – Well, this is part of the process of making what’s called an enduring power of attorney. An enduring power of attorney means one that can continue to be used even though you might have lost legal capacity yourself. Now, the person who makes your power of attorney, in other words, yourself and your husband have to do it in the presence of a lawyer or a prescribed functionary, a clerk of the court, who will then certify that they explained the document to you and you knew and appeared to understand what it meant. So the answer to your question is yes.

Jewell (caller 1) – Ok, can I just ask you another quick question? Does Turner Freeman do for us whereby my husband and I can provide for a member of the family who has a disability and it won’t affect their disability pension?

JM – Yes, umm that’s a special kind of trust that is set up under special government legislation, called a special disability trust. Now those have some very strict rules as to whether they can apply or not, including, the condition of the person which must be certified to a certain standard in order to make a trust of that sort operable. But, the answer is yes, we do do those sorts of trust, yes.

Jewell (caller 1) – And who would have to certify?

JM – The doctor.

Chris – Jewell, it might be worthwhile we giving you some numbers to contact Turner Freeman and have some of these issues clarified even further. I’ll put Jewell through to Hansel and we’ll make that happen. 131 873 – Sam in Mascot, go ahead, John is listening.

Sam (caller 2) – Good afternoon Chris and John. Just a question – If I die and my wife dies my younger brother is the guardian and I have a minor child, but he’s going to move to America soon. Will my child be able to travel and live with him until she’s 21?

JM – Generally speaking, guardianship appointments only last until a child is 16. After that age they’re in a position where they can probably make those decisions for themselves. Look, if you’re concerned about the child going across the ocean in a situation like that, perhaps you might want to consider appointing another guardian.

Sam (caller 2) – Oh, ok

JM – but otherwise, don’t forget too, the guardian is not necessarily just a custodian that you’re appointing to look after your child, the true position of a guardian is someone who can give a legal consent for a child. In other words, sign an application for a passport for a school excursion to join a sporting team, all the things that parents ordinarily do for children but the guardian has to do because of the absence of the parents.

Sam (caller 2) – Ok, thank you.

Chris – Good on you Sam – hopefully that helped you through that little issue. We want to take a break and after we’ll come back to further callers. I’ve got that $100 Westfield voucher to give away as well. We’re talking wills and estates issues with Turner Freeman’s John Mann, and he’s quite happy to take your calls. 131 873. Daphiney – go ahead.

Daphiney (caller 3) – Good afternoon.

Chris – Good afternoon to you.

Daphiney (caller 3) – My late brother, he’s been gone about 12 years now, I was the executor of his will and we got a letter, including my 2 other sisters from an unclaimed monies department, and because I was the executor ummm I have to do everything. Now, I made enquiries through the unclaimed monies something or rather, been in touch with them, I’ve sent birth certificates, where we rented his flat for so long, even tax file number and they tell me it’s the wrong birth date, yet everything else is exactly as it should be and where do I go from here? There’s not a great deal of money but my 2 sisters, they wanted claims, and being the executor I have to do it as well. Where do I start? Because they won’t give me any information whatsoever other than it’s not the right birth date.

JM – Well I’m not quite certain what you can do about the birth date.

Daphiney (caller 3) – I personally think he put it separately to be kept on at work where he was for a bit longer but I’ve got no proof of that.

JM – You’ve got an original certificate, have you? That’s what shows the date of birth they’re disputing.

Daphiney (caller 3) – Yeah, and I’ve sent them copies of everything. Copies of the will and all.

JM – It’s very hard to know where to go from there because that’s usually the be all and end all proof of a person’s date of birth. Was it ever entered anywhere else like in a family bible or a christening register or anything of that sort.

Daphiney (caller 3) – No, no. And it was even the original birth certificate that I sent them a copy of.

JM – Yeah well I think that’s gonna be fairly hard to dispute. Ummm how much is involved? Is it a significant amount?

Daphiney (caller 3) – It’s about $8,000. And it’s a great help to the 3 of us because we’re all oldies. Very old.

JM – Did you get probate of your brother’s will?

Daphiney (caller 3) – No, because he didn’t have enough to claim for.

JM – Ok well you see, that might be another reason why they won’t pay it to you, because in the absence of probate you have no legal status. Even though you’re appointed as an executor, you haven’t got probate.

Daphiney (caller 3) – Even though I made all enquiries about this when he died and because he didn’t have anything over a certain amount probate was not needed.

JM – Sure, but I think that could be an obstacle in claiming it because they don’t know you’re the executor without a probate – that’s a problem.

Chris – Yeah Daphiney, what we might do is just give you some key phone numbers to possibly get into contact with John off-air so I can get to some other callers. Sandra, in Canberra on line 6 – go ahead.

Sandra (caller 4) – Oh hi, this is a long one but I’ll make it really short. My aunt died ummm no sorry, she didn’t die. We lost her and we found her again and she had dementia and she was put into a nursing home. Now, nobody in the family was asked about this and umm it was all taken over by the government in South Australia. We’ve sent letters to freedom of information, the Prime Minister, to everybody in South Australia and they’ve all come back to say – none of your business, she made a will and you’re not in it. And we asked, well ok, but who was in it then because we’re the only family and they said none of your business and it just keeps going round and round in circles and we’re really quite lost because it’s not that we wanna argue about who’s in the will, we just wanna know who it is because we’re the only family.

JM – Is she still alive?

Sandra (caller 4) – she’s still alive.

JM – Well then it’s entirely irrelevant because whatever a person’s will is entirely their own affair. It’s not for publication for anyone else. The fact that she can’t make another will at the present time doesn’t mean to say that she won’t be able to make one at any other, because the law always presumes that she can so unfortunately they’re quite correct.

Sandra (caller 4) – Yeah, it’s just the fact that she did not have a will and they said that she was of sound mind but she has dementia and she doesn’t remember anything. They sold her house and they she didn’t even know.

JM- well, you see there’s probably some protective order the government has. She’s an independent person. I know she’s part of your family but you have no guardianship or financial management of her affairs. Unfortunately there’s nothing that you can do.

Sandra (caller 4)- nothing at all?

JM – No, short of making an application yourself.

Sandra (caller 4) – yeah, ok, yeah, yeah.

Chris – Hey Sandra, you’re in a pickle. How about I give you the $100 Westfield voucher as a very small consolation to what is a big pickle at the moment, in your house?

Sandra (caller 4) – Ohhh, thank you very much – that’s lovely.

Chris – I understand what you’re saying and it would seem to be a simple situation, but these things, when you involve the law, they often aren’t as simple as you would hope. But the $100 Westfield voucher to you Sandra.

Sandra (caller 4) – Thank you.

Chris – Stay online, I’ll put you through to Hansel and we’ll make sure we’ve got the right contact numbers. Only 20 seconds to go John, but it’s so important to get a will done before you get anywhere near being sick enough to die.

JM – I agree, couldn’t agree more.

Chris – Thank you very much for answering our questions today.

JM – Thank you Chris.

Chris – John Mann, an accredited specialist in wills and estates and property law, from the Penrith office of Turner Freeman. We do this every Tuesday and you can ask your questions next week.


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