By and -

Snapshot

  • An ageing population means increased disputes over legal capacity.
  • Courts are expecting solicitors to take a conservative approach in assessing capacity.
  • Solicitors are exposed to claims when capacity is in question.

Australia’s population is ageing. Solicitors acting for older people and dealing with their affairs should know what steps are required to establish an elderly client has legal capacity. This is important for management of the solicitor’s own risk, to discharge the solicitor’s duties and to prevent the possibility of elder abuse.

The test for capacity

Testamentary capacity requires that the testator or donor understands the nature of the act of making a will and its effects, and the extent of the property which they are disposing of. The test for capacity most often cited is Lord Cockburn’s statement from Banks v Goodfellow (1870) LR 5 QB 549:

‘… no insane delusion shall influence [the testator’s] will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’.

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more