Assessing testamentary capacity - Protecting your client and your firm

​Justice Kunc’s “Postcript” in Ryan v Dalton [2017] NSWSC 1007 suggesting that anyone over 70 be considered for assessment is having a major impact on solicitor’s practice in NSW.

Many solicitors are now treating this as the new standard for professional conduct and automatically referring anyone over 70, or with any signs of slowing, for an independent assessment of capacity before they execute any transaction.

A contemporaneous expert report addressing all of the relevant issues, prepared at the same time the transaction is executed, will be difficult to dispute in 10 years time based on vague witness recollections that “dad started to slow down a fair bit before he passed.”

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By bruce

April 03, 2018

The reasons for referral

As Justice Kunc noted: [101] “The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing.” and ” [106] ... the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. ...”

Protecting yourself and your client 5, 10 or 20 years down the track

The difficulty is that many people will eventually develop dementia or suffer some loss of cognitive capacity before they die in their late 80s or 90’s. There can then be a dispute about when the condition started and whether it was present 5, 10 or even 20 years earlier when the will was signed. Interested witnesses may recall that there was slowing even 20 years ago, and experts can honestly state that dementia is a very slow developing disease and often only diagnosed when it has firmly taken hold.

The will will be challenged, at great cost, the evidentiary onus to establish capacity may reverse, and the solicitor’s professional conduct called into question together with the adequacy of their notes and enquiry into capacity at the time of execution.

Those facts taken together with the significant professional risks to legal practitioners who are found to have acted on instructions from clients who are later deemed to lack capacity, means that the prudent solicitors’ course is now crystal clear.

If a client is over 70, or shows any signs of reduced or slowing mental capacity the safest, and in the long run by far the cheapest, option is to have their mental capacity assessed by an independent professional at the time the transaction is to be entered into .

Straight forward assessments

In the majority of cases where the person appears to their solicitor to be unimpaired or to have only a mild early age related reduction in capacity, or where an assessment is required primarily to protect against the possibility that in 5 or 10 or 20 years time the client may develop dementia (or a similar condition), the assessment can be undertaken by a registered psychologist.

A psychologist who has been trained in the legal principles underlying the transactions in question, whether testamentary disposition, the appointment of a power of attorney or an enduring guardian etc, and who is provided with specific information by the solicitor about the specific transaction, can undertake tests of cognitive functioning as necessary and perform a psychological assessment of the client’s actual understanding of the particular transaction. This process can be augmented by consultation with treating practitioners.

An oral opinion can be provided on the day of testing to allow immediate execution, and a full written report prepared pursuant to the Expert Witness Code of Conduct provided later for storage with the Will, Power or Attorney, Enduring Guardianship or other legal file.

Complex assessments

Where there are clear cognitive deficits the process is similar but will be more intense and may require more detailed testing by the psychologist. In very complex cases where there are grave doubts about capacity it may be necessary to have a clinical psychologist or neuro-psychologist under take extensive testing and possibly to consult with medical specialists particularly if there is a specific underlying medical conditions.

Protect your client and yourself

Establishing that someone who died with advanced dementia had capacity when they executed their will 15 years earlier can be difficult, and professionally unpleasant and costly if an allegation of professional negligence is flagged and a claim has to be notified.

All of this potential stress and cost can be easily avoided by the simple expedient of having an assessment of mental capacity conducted at the time the transaction is executed and then storing the completed expert report with the file.

Contact Expert Experts

Contact Expert Experts to book an assessment of mental capacity now.


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