Can you make a Will, even if you have dementia?

A person may still be able to make a Will, even if they are suffering from dementia or some other form of cognitive impairment, as explained in the recent case of Estate Rofe

Defining testamentary capacity

A Will may be disputed on the ground that the testator (person who made the Will) did not have “testamentary capacity” at the time the testator made the Will. Put simply, testamentary capacity is the ability of an individual to make a Will. It is a legal test, although medical evidence can be considered.

Generally, a duly executed Will gives rise to the presumption that the testator had testamentary capacity when he or she made the Will. However, if there are circumstances that negate that presumption, then the person propounding the Will (usually the Executor) must prove that the testator did not lack testamentary capacity at the time of executing the Will.

How does cognitive impairment factor into testamentary capacity?

Certain medical conditions can impact the mind of the testator, and therefore impact testamentary capacity. However, this does not mean that an individual with dementia, psychosis or neurological disorders does not have testamentary capacity.

For example, in Re Estate Rofe, the deceased was a former NSW barrister who had been diagnosed with dementia. He had drafted 10 Wills between 1996 and 17 December 2014, without independent legal assistance. The fact that the deceased had dementia did not negate the presumption of testamentary capacity because:

• The deceased’s psychiatrist interviewed him before execution of the Will and believed that the deceased could understand the terms of that Will;

• The deceased’s new Will was similar in terms to previous Wills; and

• The Will appeared consistent with the new events that had occurred in the deceased’s life (eg. reducing the entitlement of a beneficiary he had a falling out with).

Most importantly, this case acknowledged the complexity of cognitive decline, noting that people with cognitive decline can have ‘good times as well as bad times.’ Whether a person has testamentary capacity on any day (or time of day) may depend on a wide range of factors, such as their lifestyle, medication, health, personality, and relationships.

Questions

If you have any questions about testamentary capacity, please do not hesitate to contact us to discuss.

Liability limited by a scheme approved under Professional Standards Legislation

Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.