Some tips in determining testamentary capacity

The case of Ryan v Dalton; Estate of Ryan¹ held that there was a substantial, rather than a merely residual doubt that the testator had capacity at the time of making their will. The reasons for this substantial doubt included the manner in which the defendant had taken instructions from the testator by:

• only reading the draft will back to the testator rather than seeking confirmation of his instructions by non-leading direct questions;
• not asking why the testator was changing his will in such a way and the lack of explanation with regard to the change;
• not asking appropriate questions that might have elicited information about the testator’s capacity in view of previous medical reports and hostel notes about the testator’s mental state;
• approaching her task without knowledge of or attention to the kinds of matters identified in the Law Society of New South Wales guidelines in relation to being satisfied of a client’s testamentary capacity particularly with regard to a client residing in a nursing home;
• accepting that the testator understood the change by 'nodding his head' despite the testator 'appearing more sombre, frail and being slower on his walker'.²

The Court deemed that 'a good understanding of the issues surrounding mental capacity is an essential skill for any solicitor who holds himself or herself out as competent to provide legal services to natural persons.'³

The Court also suggested some 'basic rules of thumb’, including:

• interviewing the client alone – if an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary;
• always considering the issue of capacity and the possibility of undue influence, if only to dismiss it in most cases;
• seeking instructions by non-leading questions and carefully recording both questions and answers in a file note, and if there is any doubt about a client’s capacity - repeating this process when presenting the draft will rather than simply reading the provisions of the will to the client and seeking his or her assent;
• if the client is over 70, being cared for or residing in a nursing home – asking the client and their carer whether there is any reason to be concerned about capacity, and keeping detailed file notes.⁴

According to the Court, the evidence of a testator’s solicitor will be critical in cases which come before the Court so 'full, contemporaneous files notes’ are essential and should be retained indefinitely.⁵

1 [2017] NSWSC 1007.

2 Ibid [98].