Shades of Grey: Professional Responsibility for Determining Capacity

At a time when people are living longer than ever before, the making of a will tends to happen in later life when declining health may impact decision - making. What are the obligations of legal practitioners faced with will preparation for a client with signs of cognitive impairment? This session will provide guidance to practitioners on precautionary measures to protect both their clients and themselves from challenges, including:

• At what stage does capacity need to be tested?
• Who is responsible for making a decision on capacity? Is medical evidence always conclusive?
• Can a person with any level of dementia make a will?
• The role and obligations of practitioners in assessing capacity and planning for will execution
• Key precautionary measures to avoid challenges on the grounds of capacity
• Who bears the onus of proof in a challenge?
• What evidence of capacity will the courts look at?
• The role of the statutory will regime when testamentary capacity is lacking
• Recent cases including Greer v Greer [2021]QCA 143; Estate Rofe [2021] NSWSC 257; Chant v Curcuruto [2021] NSWSC 751; Gooley v Gooley [2021] NSWSC 56