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Dr Helen SiddleConsultant PsychiatristMBBS, FRANZCP, MFPOA

Capacity assessments

Testamentary capacity

Whether a person had the capacity to make, or change, their will.

Testamentary capacity is the legal capacity to make a valid will. The test comes from Banks v Goodfellow (1870) and remains the authority applied by Australian courts.

The will-maker must understand that they are making a will and what it does; have a broad grasp of what they own; understand who might reasonably expect to benefit and be able to weigh those claims; and not be affected by a disorder of mind that distorts their judgement about who should benefit.

The standard is not perfect memory or perfect reasoning. It is whether these specific abilities were present when the will was made.

Where wills are challenged

Challenges usually follow a pattern. The will-maker was old. There was a diagnosis, or a decline that was never diagnosed. The new will departed from an earlier one, or from what the family expected. Someone who benefited was close by.

Dementia does not settle the question

A diagnosis of dementia is often treated as the end of the argument. It is not. Capacity is decision-specific, and many people with early or moderate dementia retain the abilities the test requires, particularly for a simple estate and a will that reflects long-held wishes.

Equally, a person with no diagnosis may lack capacity because of delirium, severe depression or a delusional belief about a family member.

Dr Siddle's reports address the actual condition, its actual effect on the abilities in the test, and the evidence for both.

Before signing, or after death

Contemporaneous

The solicitor arranges an assessment when the will is being prepared. Dr Siddle interviews the client, reviews the medical history, and gives an opinion against each element of the test. If the will is later challenged, this is direct evidence of capacity at the time. It is the most useful thing a solicitor can do when there is any doubt.

Retrospective

The will-maker has died. Dr Siddle reviews the medical records, the solicitor's file notes, and statements from those who knew the person, and gives an opinion on their likely capacity at the date of the will. The report is explicit about what the records support and where they are silent.

What happens

  1. Brief and documents. The referring party will send the claim file, medical records, prior reports, and the specific questions needing to be answered.
  2. Interview. The independent assessment will usually take one to two hours. The subject is informed of the independence of the assessment and that the report will go to the referrer. Assessments are conducted in Dr Siddle's rooms at Spring Hill or by telehealth. Home visits are not undertaken.
  3. Report. Dr Siddle will provide a report including the assessment and her response to the specific questions. Reports are usually provided within one week.

Refer a testamentary capacity matter

Send the letter of instruction and the file. You will be contacted by our team.

Send a referral