These things have all combined to create greater risks for solicitors and their clients that a Testamentary Disposition will be challenged on the basis of incapacity.
A contemporaneous independent assessment cannot guarantee a Will won’t be successfully challenged. However, it provides valuable evidence that may quickly dissuade opportunistic claimants and help protect your client’s wishes, the beneficiaries and your firm if a matter proceeds to Trial.
A Registered Psychologist assesses your client for 30 to 60 minutes on the day of (or just before) the execution of the will using a highly structured question set designed to meet the legal tests for testamentary capacity.
Based on your instructions they ascertain that the client:
If requested the Assessment can be video recorded.
The Psychologist provides an expert opinion report detailing the assessment and citing the Code of Conduct, exhibiting the letter of instructions, the unsigned will, and the video if asked for, and providing an expert opinion on testamentary capacity. A short written confirmation is provided on the same day so the will may be executed with the full report to follow.
If the Psychologist does not believe they can state there is testamentary capacity they will let you know immediately to discuss options for more detailed investigation
The assessment takes place in Castlereagh St near the Family Court, or by special arrangement at your offices or a nursing home. Skype interviewing with recording may be able to be used for clients outside Sydney.
If you believe there are any signs of dementia, mental slowing including (eg word finding difficulty), delusional behaviour, a specific medical condition (eg cancer) or observable physical frailty which may later be argued to be associated with a medical condition likely to have had an impact on capacity, or if a Registered Psychologist is unable to provide an opinion on capacity in the course of a Standard Assessment, we recommend an Intensive Assessment.
Very high net worth individuals, and anticipated litigation, may also make this appropriate.
A Registered Clinical Psychologist, Neuropsychologist or Forensic Psychologist will undertake testing to provide an objective assessment of overall neurological and intellectual functioning. Once that objective investigation material is obtained, and subject to the results, they will undertake a very detailed clinical assessment of testamentary capacity and provide their report and opinion as above. On request a Geriatrician’s opinion may also be obtained.
Where there was no contemporaneous assessment it is still possible to provide an opinion as to testamentary capacity on the balance of probabilities.
A PhD level Registered Clinical Psychologist or Neuropsychologist, including full Professors in Psychology, will review all available material and provide a report and opinion for use in litigation. On request a Geriatrician’s opinion may also be obtained.
A standard assessment of a person with minimal apparent deficits and a simple will involves a total of 4 hours of work to deliver a standard report and currently costs $990 including GST. Greater complexity or volumes of material add to the cost on an hourly basis.
These are more expensive because of the qualification and experience levels required to undertake clinical testing and provide opinions in complex and potentially contentious matters.
A quote is given for acceptance based on the materials provided prior to any assessment. The quote is subject to reasonable variation depending on what occurs during the assessment.
Most GP’s know their clients well, but they don’t know legal tests for testamentary capacity, which can make their opinions difficult to rely on in Court if they are couched in general rather than specific terms.
Further, they often don’t have the 4 hours (average) or more required to review the will and letter of instructions, conduct an in person assessment asking all relevant questions, and then to prepare an expert report an in admissible form addressing all of the relevant legal issues.
If you have a client over 70, or with any signs of mental slowing, or a situation where the exclusion of potential beneficiaries or existence of prior families may foreshadow a challenge, protect them and your firm by speaking with us about a Testamentary Capacity Assessment now!
If you have a will that is being challenged for competency or undue influence and need an expert