I have written previously about the solicitor’s duties to an elderly client regarding assessing capacity when taking instructions to make a new Will. When a solicitor is concerned that their client has suspect capacity, they are duty bound to obtain reasonable assurance as to the capacity of the client before they make the Will.
Assessing capacity includes confirming as best they can that the client:
- Understands the nature of the act of making the Will and its effects;
- Understands the extent of the property of which he or she is disposing;
- Comprehends and appreciates the claims to which he or she ought to give effect; and
- Is not suffering from a mental illness or disorder which has influenced his or her decisions in relation to the making of the Will.
In the recent NSW Supreme Court case of Aleta Gooley v Brett Gooley [2021] NSWSC 56 the Court made specific observations about the solicitor who had drafted the various Wills in dispute.
In circumstances where there had been so many wills made by the deceased in such a short period of time, it should have stood out as a flashing red light giving rise to a question as to the deceased’s capacity. The solicitor made no attempt to ascertain the deceased’s capacity.
The Court found the solicitor’s evidence to be ‘somewhat unimpressive’ and that the solicitor was neither alive to the issues or interested in making sure that the elderly client understood what he was doing. Moreover, he had a poor recollection of events and may have been untruthful when giving evidence to the Court.
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