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Testamentary Capacity

Legal Practice Director Jeff Garrett discusses the challenges around Testamentary Capacity

The onset of Alzheimer’s disease or some form of dementia can be difficult for families to cope with on a number of levels.

Nothing can be more difficult to deal with than seeing a previously healthy and intelligent, articulate family member struggling with their memory, speech and behavioural changes.

There is also an important legal issue involved when people suffer from any form of dementia and this relates to whether they have the capacity to make a Will or sign an Enduring Power of Attorney.

There is a common misunderstanding that if someone is diagnosed with dementia or Alzheimer’s disease that they cannot make a Will or an Enduring Power of Attorney – nothing could be further from the truth.

Provided the onset of the disease is in its early stages and the person can still understand the issues involved with making a Will or Enduring Power of Attorney, a legally binding document can still be executed and acted upon.

There are different tests in relation to a Will and an Enduring Power of Attorney but basically you need to ensure that a lawyer specialising in this area is consulted and that you obtain an appropriate medical certificate or report from a doctor who has experience in these types of matters.

You need to be careful with people suffering from this form of illness as it can also have an effect on their decision-making capabilities.

Drastic changes to Wills in relations to beneficiaries, or the creation of new Wills by people suffering dementia often spark uproar in families that leads to litigation.

It is not uncommon to have elderly parents being taken to different law firms in order to change Wills and Powers of Attorney to favour certain family members.

It is important that family members are fair to their parents or grandparents and that they ensure they are properly looked after. If this is not done, the the appropriate Tribunal in their State (NCAT in NSW or QCAT in QLD) can intervene.

Further information, please contact our please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.

We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.

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Jeff Garrett

Jeff Garrett

  • Legal Practice Director
  • Direct line: 07 5506 8201
  • Mobile: 0419 304 174