Wills and Estates Research Assignment PDF

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This is an analysis of testimentry capacity and professional practice. ...

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TESTAMENTARY CAPACITY, DEMENTIA AND PROFESSIONAL PRACTICE BLB4146 Wills & the Administration of Estates

Contents TESTAMENTARY CAPACITY, DEMENTIA AND PROFESSIONAL PRACTICE .................. 1 I

SUCCESSION LAW: TESTAMENTARY INSTRUMENT .......................................... 2 A

Formalities of Wills ........................................................................................................ 2 1

B

C

II

General Tests of Validity ................................................................................. 3

Practitioner: Testamentary Instruction and Capacity ...................................................... 4 1

Mental Capacity to Instruct ............................................................................. 4

2

Testamentary Instructions ............................................................................... 4

3

General Assessment of Cognition ................................................................... 5

Dementia and Mental Capacity ...................................................................................... 6 1

Dementia: Individual Cognition and Functional Ability ................................. 6

2

Legal Test of Cognition ................................................................................... 7

CONCLUSION .............................................................................................................. 8

BIBLIOGRAPHY .......................................................................................................................... 9 A

Articles/Books/Reports................................................................................................... 9

B

Cases

C

Legislation .................................................................................................................... 10

E

Other

......................................................................................................................... 9

....................................................................................................................... 10

Page 1 of 12

I

SUCCESSION LAW: TESTAMENTARY INSTRUMENT

In order to explain whether a person affected by dementia can have sufficient cognitive function to make a Will1 it must be demonstrated that they possess testamentary capacity to make that Will. To do this, it is first necessary to identify what formalities, at a minimum, are required in the construction of a Will from a person not affected by a cognitive impairment such as dementia. In Clemens v Byrnes, 2 Justice Hall observed that the relationship between freedom of testamentary disposition and testamentary capacity is legally significant as testamentary freedom3 is a firm right possessed by all people. Except for family provisions 4, the Courts determination to partially or in full, extinguish testamentary freedom therefore cannot be based on whether a testator’s disposition of property is ‘unfair, unwise or harsh with one's property’.5 As it was highlighted by Justice Hall’s reference to Re Estate of Griffith 6 and Hunter v Hunter, 7 that Practitioners owe a duty to their client, quoting the Courts hesitance to “‘determin[e] that a person lack[s] testamentary capacity at the time of making their Will as ‘a grave matter’”.8 �is emphasises the need for Practitioners to exercise due care 9 and diligence throughout the process of taking instruction and executing that Will.

A

Formalities of Wills

�e nature of a Will is to provide a testator with a ‘testamentary instrument’ through which they can voluntarily express an intention, 10 such as the disposition of property, that will take effect upon their death to dispose of that property after their death.11

1

Administration and Probate Act 1958 (Vic) s5(1) (definition of ‘will’). [2007] NSWSC 421 [120]. 3 Vaughan v Marquis of Headfort (1840) 10 Sim 639 [641]. 4 Wills Act 1997 (Vic) s 55; Administration and Probate Act 1958 (Vic) s 91. 5 Clemens v Byrnes [2007] NSWSC 421; citing Re Estate of Griffith (1995) 217 ALR 284 [294] (Kirby P); Hunter v Hunter (1987) 8 NSWLR 573 [576] (Kirby P). 6 (1995) 217 ALR 284 [294]. 7 (1987) 8 NSWLR 573 [576]. 8 Clemens v Byrnes [2007] NSWSC; citing Re Estate of Griffith (1995) 217 ALR 284 [294] (Kirby P), [290] (Gleeson CJ); Hunter v Hunter (1987) 8 NSWLR 573 [576] (Kirby P). 9 Wrongs Act 1958 (Vic) ss 58, 59 (1). 10 Shaw v Crichton (Unreported, Supreme Court of New South Wales Court of Appeal, Handley, Powell, Cole JJA, 23 August 1995); citing Timbury v Cottee (1941) 66 CLR 277; Banks v Goodfellow [1870] LR 5 QB 549. 11 Russell v Scott (1936) 55 CLR 440 [454]. 2

Page 2 of 12

1

General Tests of Validity

�e Wills Act12 provides the first test used to identify if a Will is valid in the form of statutory framework for testamentary formalities. �is framework guides a testator or their legal representative to construct13 a document that expresses the testamentary intention14 by identifying what must be included in the construction15 of the Will before it can be formally executed. �is means that: i)

a testator, unless married, must be at least 18 years of age, 16

ii) the Will must be written, identifying; a.

the executor(s) and beneficiaries;17

b. what property18 will be disposed19 of; and c. how the testator intends their estate to be administered.20 iii) �ere must be no less than two eligible witnesses21 who have knowingly signed the Will in the presence of the testator; and iv) the testator must have signed22 the Will with the intention of executing [that] Will. It is important to stress the importance of formalities regarding intention given the competing authorities on defective documents and probate.23 Habersberger J observed that ‘a document must have been seen or read to a person before a court can be satisfied that a person is not required to have seen the actual document in order to have possessed the relevant intention to make a Will…’ 24 Except in circumstances where testamentary capacity is an issue, the common law presumption is that ‘due execution’ of a Will is evidence of a testators’ knowledge and approval of the contents of a Will.25

12

Wills Act 1997 (Vic). Ibid Part 4. 14 Ibid ss 4-8. 15 Ibid Part 4. 16 Ibid ss 5, 20(1), (8)(a); Re Wernher [1918] 2 Ch 82; Re Elliott (dec’d) [1917] VLR 322. 17 Wills Act 1997 (Vic) ss 7(3-4), 13(2), 48; Robertson v Smith (1890) LR 2 PD 43, 45; Re Berger (dced) [1990] Ch 118. 18 Wills Act 1997 (Vic) ss 4(2)(a-b), 14, 33, 41, 42, 52; Administration and Probate Act 1958 (Vic) s 5(1); LexisNexis Butterworths, Wills, Probate and Administration Service Victoria, Vol 1 (at 5,015) 3079. 19 Wills Act 1997 (Vic) s 3 (definition of disposition). 20 Administration and Probate Act 1958 (Vic) s 5(1). 21 Wills Act 1997 (Vic) ss 7(1)(c-d), 10, 11, 15(3)(a-b), 19(2), 20(6); Nicholas v Penn [2004] WASC 227. 22 Ibid ss 7(1)(a-b). 23 Re Estate of Parkinson (1988) 143 LSJS 336; Re Application of Brown (1991) 23 NSWLR 535; Henwood v Public Trustee (1993) 9 WAR 22; Re Estate of TLB (2005) 94 SASR 450; Re Estate of Schartzkopff (2006) 94 SASR 465. 24 LexisNexis Butterworths, Wills, Probate and Administration Service Victoria, Vol 1 (at 5,040.10) 3127. 25 Nock v Austin (1918) 25 CLR 519; LexisNexis Butterworths, Wills, Probate and Administration Service Victoria, Vol 1 (at 19,108) 4989. 13

Page 3 of 12

B 1

Practitioner: Testamentary Instruction and Capacity

Mental Capacity to Instruct

In Goddard Elliot (a firm) v Fritsch, 26 Justice Bell refers to the ‘rights and duties involve[d in] choice’ and [that] individuals ‘naturally ... enjoy the ability to choose’” as the ‘foundation principle at common law’ 27 going on to affirm that Practitioners owe a duty to their clients to assess their capacity to give instructions… [and that] it is always to be expected of a lawyer exercising ordinary skill and competence that they are reasonably satisfied of the client’s mental capacity to instruct.’ 28 It can now be said that ‘decision-making capacity’ 29 and a Practitioners failure to assess capacity may fall within the category of professional negligence being referred to as ‘capacity negligence’ 30 which expands mental capacity from testamentary capacity to include testator instructions to Practitioners: making Practitioner’s accountable to the court and to the client.

2

Testamentary Instructions

�e High Court in Goddard Elliot (a firm) v Fritsch31 have held that ‘the mental capacity [is] required by the law in respect of any instrument… and may be described as the capacity to understand the nature of that transaction when it is explained’ 32. In this context, a Practitioner can fulfil this duty while gathering client and testamentary instructions. �e questions that a legal practitioner33 (‘Practitioner’) must ask when faced with a testator who is affected by dementia are: Does the testator possess sufficient cognitive function at the time of making the Will to withstand objective scrutiny? What legal steps can be taken to ensure the clients testamentary intentions are represented and legally enforceable?

26

[2012] VSC 87. Goddard Elliot (a firm) v Fritsch [2012] VSC 87 [132]. 28 Ibid [418]; cited in Lise Barry, ‘Goddard Elliott v Fritsch [2012] VSC 87 - Case Note ’ (2012) 10 Macquarie Law Journal 7, 131. 29 Lise Barry, ‘Goddard Elliott v Fritsch [2012] VSC 87 - Case Note ’ (2012) 10 Macquarie Law Journal 7, 131. 30 Wrongs Act 1958 (Vic) Part VIAA, s 59; Jones v Dunkel (1959) 101 CLR 298. 31 [2012] VSC 87. 32 (1954) 91 CLR 423 [438] (Dixon CJ, Kitto and Taylor JJ). 33 Legal Profession Act 2004 (Vic) s 1.2.3 (definition of ‘Australian legal practitioner’).

27

Page 4 of 12

3

General Assessment of Cognition

�ere are in fact, significant tools and resources available to medical practitioners34 to screen and measure cognitive function, such as the ‘Mini Mental State examination used in Goddard Elliot (a firm) v Fritsch35 by the plaintiffs’ medical practitioner. Tools like this could be used in the natural course of client interviews and instruction meetings to superficially assess capcity. �e Dementia Collaborative Research Centre 36 have produced a two-part cognition screening tool, that lists several questions that are easily incorporated into general conversation. �e use of general questions could indicate social and environmental awareness and demonstrate cognitive issues that may affect decision making capacity or signal specific legal and testamentary considerations that lead to rationale and reasoning deficiencies.

(a)

General Client Questions i)

What is your name and full address?

ii) When were you born? iii) Who are your parents? iv) Do you have brothers or sisters, what are their names? v) Can you tell me how about local events, news, sports etc…?

(b)

Testamentary Client Questions i)

Have you given anyone Powers of Attorney37 to make decisions on your half?

ii) Why do you want to make or change your Will? iii) Who do you want to benefit from your Will? iv) How do you want to distribute your estate? v) Do you have any special ceremony or burial requirements?

(c)

Practitioner Considerations

In practice, these questions above would most likely form the basis of any client conversation and assist in identifying issues with a testator being present and aware of current time and environment, awareness of their surroundings, significant memory deficiency which each could impede capacity or understanding to make decisions.

34

Health Practitioner Regulation National Law (Victoria) Act 2009 s 5 (definition of ‘medical practitioner’). [2012] VSC 87 [145]. 36 Dementia Collaborative Research Centre, General Practitioner Assessment of Cognition Tool, (2002) University of New South Wales . 37 Powers of Attorney Act 2014 (Vic) ss12, 27; Guardianship and Administration Act 1986 (Vic) Part 5. 35

Page 5 of 12

Practitioners can easily record these client file notes during the process of taking instructions that may support whether there is testamentary capacity to rationale, memory and capacity to make decisions. �is both alerts a Practitioner to potential issues that would not withstand objective and legal scrutiny and make recommendations for independent assessment from a medical practitioner.

C

Dementia and Mental Capacity

�e threshold test of ‘sound mind, memory and understanding’ established in Banks v Goodfellow38 has remained the lead authority on testamentary capacity because it has maintained the capability of being applicable to an ever-growing genus of medically diagnosable cognitive disorders and disease.

1

Dementia: Individual Cognition and Functional Ability

Dementia is a ‘neurocognitive disorder’ that can be characterised as a progressive loss or decline of intellectual ability. �is broad and non-specific explanation of the condition does little to guide a Practitioner except to say that it includes ‘memory, thinking, orientation, comprehension, social interaction, reasoning, planning, decision making and emotional responses which impact on the individual’s ability to carry out day-to-day activities.’ 39 Likewise, early clinical diagnosis of dementia in Australia is difficult due to symptoms presenting subtly, remaining undiagnosed for up-to an estimated five years and having varied effects and extent of dementia between any two people. For this reason, Practitioners must be cautious and vigilant while taking instructions from a testator and maintaining detailed file notes, and utilise professional and expert medical assessment to support the existence of testamentary capacity. 40

38

(1871) LR11Eq 472 [565]; Victorian Law Reform Commission, Succession Laws: Consultation Paper Small Estates (19 January 2017) 25. 39 Nicola Gates, ‘Legal Minds and Dementia’ (2014) 6 Law Society of New South Wales Journal 34-36. Barbara Workman, Fiona Dickson and Sally Green, ‘Early Dementia Optimal Management in General Practice’ on Royal Australian College of General Practitioners/Australian Family Physician 39 (10) October 2010 722-726 ; citing Health Department of Health and Ageing, Dementia Research Mapping Project Final Report Australian Government (Accessed 12 August 2010) (sic). 40 Clemens v Byrnes [2007] NSWSC 421 [76-79], [88, 90], [110, 111, 119], [145].

Page 6 of 12

2

Legal Test of Cognition

A testator in possession of mere knowledge and approval of the contents of the document and the general understanding that: i)

the Will was made in contemplation of their own death41 and approved of the making of that Will; 42

ii) they generally understood the effect of the Will was to dispose of their estate upon their death. �is does not however mean they should possess a complex or detailed understanding of the nature and extent of their property. 43 iii) who may possess a reasonable claim over their property, however ‘freedom of testamentary disposition includes a freedom to be unfair, unwise or harsh with one’s own property’.44 iv) Where they are influenced by cognitive impairment to the extent that it could not be said they are of ‘sound mind, memory or understanding’ 45 �e issue before the Court in Clemens v Byrnes46 was whether ‘the testator was of sound mind sufficient to understand the nature and extent of his estate, the calls upon his bounty and his intended disposal of that estate’ and the presence of ‘delusional paranoid beliefs’ that could not be reasoned out.47 (a)

Lucid Intervals

Although the presence of lucid intervals48 was not directly relevant in Clemens v Byrnes, 49 it is relevant discovery needed to apply or dismiss Timbury v Coffee 50 and Kantor v Vosalho. 51 This principle establishes that when the time of lucid mental capacity and providing testamentary

41

Public Trustee v Stretch [2002] WASC 147; Nicholson v Knaggs [2009] VSC 64 [97]; Re Estate of Griffith (decd); Easter v Griffith (1995) 217 ALR 284 [295-296]. 42 Estate of Beech v Public Trustees [1923] 46; Ackerley v Felton [2012] NSWSC 1468. 43 Nock v Austin (1918) 25 CLR 519; Brown v Wade [2010] WASC 367 [98]; Kerr v Badran [2004] NSWSC 735 [49]. 44 Clemens v Byrnes [2007] NSWSC 421 [88]; Re Estate of Griffith (decd); Easter v Griffith (1995) 217 ALR 284 [294]; Rosalind Croucher, ‘How Free is Free? Testamentary Freedom and the Battle between 'Family' and 'Property' Australian Journal of Legal Philosophy (2012) 37 (12); Victorian Law Reform Commission, Succession Laws: Consultation Paper - Small Estates (19 January 2017) ; citing Rosalind Croucher, ‘Statutory Wills and Testamentary Freedom-Imagining the Testator’s Intention in AngloAustralian Law’ (2007) 7 Oxford University Commonwealth Law Journal 241, 245; Rosalind Croucher, ‘An Interventionist, Paternalistic Jurisdiction? �e Place of Statutory Wills in Australian Succession Law’ (2009) (32) 3 University of New South Wales Law Journal 674, 691. 45 Clemens v Byrnes [2007] NSWSC 421 [77, 88, 97, 110]. 46 [2007] NSWSC 421 [72]. 47 Bull v Fulton (1942) 66 CLR 295 [339]; Clemens v Byrnes [2007] NSWSC 421 [125, 133]. 48 Parker v Felgate (1883) 8 PD 171. 49 [2007] NSWSC 421 [45]. 50 (1941) 66 CLR 277. 51 [2004] VSCA 235.

Page 7 of 12

instruction intersect, that testamentary capacity can be established. However, this is limited to the extent the testator possesses sufficient memory and understanding of the content of the Will.

This emphasises the importance of considering how, when and where a Practitioner accepts testamentary instructions in the presence of testamentary witnesses and the significance of medical practitioner attestation,

52

as to the nature and extent of mental capacity at the time of giving

instructions.

(b)

Rationality and Judgement

�e question of rationality 53 or judgement could be characterised as the difference between ‘harsh, unreasonable judgment of character’ which is a subjective values founded statement and ‘morbid aberration… which so affects the testator's judgment of a person with a natural claim on the testator's bounty…54 which objectively undermines the existence is sound judgement that lacks testamentary capacity.

II

CONCLUSION

�e recent discussion paper Elder Abuse,55 introduces legal capacity as the threshold for individuals to make choices that have legal consequences and being accountable for those decisions. In this sense the Australian Law Reform Commission 56 statement relates to testamentary freedom of an individual to having the ability ‘make the choice… should be able to provide valid consent, and make decisions for which they can be held accountable…’57 while they are living. As Practitioners, it is without doubt that we are obligated with duty to the Court and our clients: and the pragmatic approaches available to Practitioners to protect a clients’ testamentary freedom is expansive. But, if we fail to examine the lead and current sources of authority, consider each individuals circumstances and evaluate genuine and perceived issues of testamentary capacity, we risk failing our duty to the Court and our client.

52

Evidence Act 1958 (Vic) ss 123C, 124. Clemens v Byrnes [2007] NSWSC 421 [128, 129]; citing Bailey v Bailey (1924) 34 CLR 558, 571 (Isaac J). 54 Clemens v Byrnes [2007] NSWSC 421 [127]; citing Re Estate of Griffith (1995) 21...