As the population ages, more care needs to be exercised by lawyers when acting for elderly clients.
A will made in circumstances where the person did not have the mental capacity to do so may result in the will being found to be invalid.
Red flags about a client's capacity should be raised when the person making the will is in hospital or an aged care facility or has suffered some decline in cognitive ability and is making changes to a long-standing arrangement with respect to their intentions for the disposal of their assets after their death.
An elderly widower became frail and forgetful and started spending his money like there was no tomorrow.
He mistakenly believed that the money had been taken and used by two of his three sons under an existing power of attorney.
Concerned for their father's wellbeing the two sons made application for the appointment of a financial manager in the Guardianship Division of NCAT.
After a hearing, the members of the Guardianship panel agree that given cognitive decline, recent behaviours and the man's vulnerability, an order appointing a financial manager was necessary and in his interests. The other son was appointed.
Under a delusion about the conduct of his two sons and their motives, the elderly gentleman changed his will from what had always been an equal split between his sons to a will in which he left all but a very mall legacy to the son who was now the financial manager.
"The situation highlighted in the case study could have been avoided if the lawyer who had drafted the will had made proper inquiries about the medical condition of the testator and had investigated the social and family circumstances which were affecting the old man when he gave instructions to change what was a long standing reason," lawyer Conrad Curry, from the Law Office of Conrad Curry, said.
"He should have corrected the testator's misunderstanding and beliefs about the motivations of his sons in taking the Guardianship proceedings and correcting any delusional beliefs held."
Where mental capacity is an issue with a will, Mr Curry said it is extremely important to investigate both the medical context in which the instructions are being given and testing the person's understanding of that which they are intending to do,
"If there are issues about cognitive decline the solicitor should make inquiries of treating medical practitioners and obtain medical reports as to the person's capacity," Mr Curry said.
"The solicitor should also satisfy themselves as to the person's capacity by asking open and non-leading questions about the motivation for changing a will, their understanding of what the change means and the effect it will have.
"In circumstances where there is a change to a long-held arrangement, the solicitor should question the reasons why he/she was contacted and obtain information about the person's social and living conditions and the person's values and preferences."
If a beneficiary in a prior will is adversely affected, an application may be made to prove a prior will.
"It is important to approach a solicitor early and to lodge a caveat with the Supreme Court to prevent the questionable will being admitted to probate," Mr Curry said.
Located at 46-48 Tudor St Hamilton, the Law Office of Conrad Curry has a wealth of experience in estate litigation and provides legal advice and representation in relation to disputes in all NSW Courts and Tribunals.
For more information, ring 02 4050 0330 or visit www.conradcurrylaw.com.au.