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Home | Blog | Dementia and capacity

This case[i] highlights the importance of the time when a person’s capacity should be considered in determining whether or that person’s will is valid.

Proving capacity when drafting a will

A man purchased a will kit from the post office, filled it out and then signed it in the presence of two witnesses on 1 October 2009. Less than one month later, the man was taken to a hospital’s emergency department, where it was noted he may be suffering from early dementia.

The deceased was admitted to the same hospital again the following month, where upon his discharge he was diagnosed as having dementia with social issues.

Two months after making his will, the Queensland Civil and Administration Tribunal appointed a guardian to manage his personal matters and an administrator to manage his financial matters on his behalf. Such appointments were made as the Tribunal did not believe the deceased had capacity to make his own personal and financial decisions

The question in this matter was whether or not the man’s will was valid.

It is important to understand a presumption that exists in relation to the validity of wills. The presumption is, that if a will is executed in accordance with law and appears rational on its face, the will-maker (“testator”) is presumed to have capacity.

The man’s will was executed in accordance with law. He signed it in the presence of two witnesses who also signed it themselves. Both witnesses provided affidavit evidence stating the same.

Therefore, the presumption had evidence to support it. There was also evidence that suggested the deceased understood the significance of making his will; he had discussed who he wanted to leave his estate to, made sure he had witnesses when signing it and had himself and his witnesses initial an error on it.

There was also evidence that the deceased had considered who he should give his estate to. He had told the beneficiary, who was one of his close friends, that he wanted to leave his estate to her. She questioned whether there was anyone else he could leave it to, to which he replied there was no one. He had a brother who he had lost contact with, had divorced his wife and had no children.

There was no evidence to suggest the deceased did not have capacity at the time he made his will. The Court relied on evidence from a doctor who noted that despite the deceased’s delirious condition when he was admitted to hospital in late 2009, a significant proportion of people are cognitively entirely normal prior to a delirious episode. The doctor said he could not extrapolate back to the deceased’s mental capacity at the time he made his will.

The deceased’s admissions to hospital in late October and November and the views and reasons of the Tribunal did not assist the Court in determining whether the deceased had capacity at the time he made his will. Therefore, the Court held that the deceased did have capacity, and therefore his will should be admitted to probate.

[i] Re Toulitch (Deceased) [2016] QSC 219

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