Family members of a deceased person often come to me and question the testamentary capacity of their loved one when they have been left out of, or poorly provided for in, a will.

Guidelines established by the NSW Law Society provide solicitors assistance to decide whether the person making the will has capacity.

Amongst other things one must decide whether the person is able to understand the general nature of what they are doing.  Does that person understand the nature and effect of making a will, what their assets are, and who may make a claim on the estate?

Equally it is prudent for the solicitor to find out if the person has some sort of mental condition or illness that may require medication or treatment and whether that person is being cared for at a facility.

One of the more recent cases that tested this was Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 . In this case the will maker had changed his will from providing for his three children equally to a new will in which he provided for his three children and his de facto spouse equally. His children contested the newer will and claimed that their father could not have had the capacity to enter into it.

The Court held that this newer will was invalid based on notes made about the will maker by the nursing home of which he was a resident. The notes claimed that he was suffering from increasing delusions and confusion. The Court also held that the solicitor did not make use of the NSW Law Society guidelines relating to capacity and failed in her duty to take the necessary steps to ensure capacity.

If you believe you may have a claim on an estate as you have not been properly provided for and then I would suggest seeking legal advice. Remember, strict time limits apply and there is no harm in making an appointment to seek legal advice.

Call me now on 9344 3757 or email me for a free consultation.