Dementia is a general term that is used to describe a group of illnesses which result in the progressive decline in a person’s mental capacity.  In Australia, dementia ranks as the fourth leading cause of death among the population aged 65 years and over and the risk of being diagnosed with dementia significantly increases as we age. 

Dementia affects estate planning and estate administration in various ways. 

With respect to estate planning, although a client is generally presumed to have capacity, having dementia rebuts this presumption and can make estate planning very difficult.  In cases where a client is suffering from dementia or where an estate planning lawyer suspects a client might be suffering from dementia, as with all estate planning, an estate planning lawyer should consider carefully whether the client has testamentary capacity.   Whether or not a client has testamentary capacity is a legal question, but medical evidence is highly relevant. 

Among other factors, the following matters should be considered when assessing a person’s testamentary capacity: 

• whether or not the client understands the nature of making a Will and the effect of the document;
• whether the client knows the nature and extent of assets of which he or she is disposing under the Will;
• whether the client understands the “moral” claims which he or she should consider when leaving his or her estate, for instance, the claims of his or her spouse or children when deciding who should benefit from the estate.  A person does not necessarily need to leave the estate to these individuals, but the individual should be able to show that consideration has been given to these individuals and, ideally, to provide an explanation as to the reasons for what might be regarded as potentially unusual estate planning choices; and
• whether the person could be suffering from any delusions. 

If a person who suffers from dementia wishes to make a Will, and is able to pass the legal test, then it is prudent for his or her estate planning lawyer to contact that person’s doctor to request a medical opinion as to whether or not, in the doctor’s opinion, the client has the necessary capacity to make a Will.   However, even if the client passes the test and obtains positive medical evidence, there is still no guarantee that having such evidence in place would prevent the Court from later declaring the Will to be invalid, but the evidence is likely to go some way towards supporting the validity of the Will.  

The existence of dementia on the death certificate as a contributory cause of death can lead to problems for the executor in obtaining a grant of Probate of the Will as, unfortunately, doctors often fail to specify for how long a person was suffering from dementia.  A Will is only valid if, amongst many other things, a person had the relevant level of testamentary “capacity” on the date on which he or she gave instructions to make and then sign the Will.

When considering the contents of an application for Probate of a Will where dementia appears on the death certificate, even if it is only as a contributory cause, third party evidence from both the witnesses to the Will and from the deceased’s general medical practitioner will often be required by the Supreme Court to support the contention that the Will is valid.

For more information on this matter or estate planning generally, please call either Sarah Walton (direct line 9420 7166) or Rob Durey (direct line 9420 7105).