Background
There is an increasing number of challenges to the validity of wills which provides important reminders for practitioners about the care needed with the preparation of these documents.
Are there signs of mental decay?
In the case of Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 , the Court made numerous adverse comments about the solicitor’s practice including the following:-
- A copy of the will was not given to the client in advance of the meeting.
It should be observed, however, that giving the client their draft will in advance of the meeting is rare.
- The solicitor did not keep a file note of the meeting.
It is highly recommended that a solicitor take detailed notes of questions asked and answers given, and make general observations whenever doubts exist regarding a client’s testamentary capacity.
- The testator was not asked open questions.
Open-ended questions allow for an evaluation of the client’s understanding. As stipulated in Gray v Taylor; The Estate of the late Stanislaw Zajac [2017] NSWSC 497 (9 May 2017), “where testament capacity is in doubt, at the very least, a solicitor should ask the testator questions to ascertain the testator’s basic understanding, to gain reasonable assurance regarding testamentary capacity.”
- The solicitor did nothing to test the testamentary capacity of the client.
A solicitor must assess mental capacity in every instance a client engages in legal action.
What assistance can a medical practitioner provide?
Where there is reason to doubt a client’s mental capacity, it is often prudent to seek a medical opinion if time, circumstance and client’s instructions allow. This is generally considered as good practice, but the adequacy of the medical opinion to assist the solicitor’s determination of testamentary capacity needs to be carefully scrutinised.
How long do you keep your files and file notes?
The suggestion is that practitioners should retain file notes indefinitely as the need for evidence of mental capacity may arise many years after the legal work is performed.