By Rosalind Croucher AM -
Snapshot
- The issue of elder abuse in the context of pressure to make or change wills was one of the many topics considered by the ALRC in the report, Elder Abuse—A National Legal Response.
- With an ageing population, lawyers may increasingly be called upon to assist in the preparation and execution of advance planning documents. Lawyers must have an understanding of legal competency and be in a position to ensure the documents are freely and voluntarily made by people who are legally competent.
- To aid in combating elder abuse and to reduce undue influence in the making of wills, the ALRC recommended a national coordinated response, through national best practice guidelines developed by state law societies and the Law Council of Australia.
Advance planning documents, such as wills, are a key part of estate planning and are an expected part of a lawyer’s practice – either because it is the kind of practice the lawyer undertakes or as an aspect of serving the wishes of particular clients. A lawyer has an important role in supporting a client to make a will and understand its nature and content. A lawyer can also protect a client in situations of potential undue influence.
The issue of elder abuse in the context of pressure to make or change wills was one of the many topics considered by the Australian Law Reform Commission in the report, Elder Abuse—A National Legal Response (‘Elder Abuse Report’), launched by Federal Attorney-General George Brandis QC on World Elder Abuse Awareness Day on 15 June.
In a chapter dedicated to the topic of wills, the ALRC discussed the doctrines that deal with situations involving the understanding of testators and influence of one kind or another: testamentary capacity; undue influence in probate; the doctrine of suspicious circumstances and wills formalities. The ALRC also covers the topic of disqualification: the
witness-beneficiary rule and the forfeiture rule.
In the context of an ageing population, lawyers may well become increasingly called upon to assist in the preparation and execution of advance planning documents. Lawyers may therefore be in a key position to recognise where clients may be affected by cognitive impairments or subject to undue pressure in relation to their preparation. To ensure that lawyers can play this crucial supportive role, they need to have an understanding of legal competency relevant to the particular context, and how to ensure that the documents are freely and voluntarily made by people who are legally competent to do so.
The ALRC tackles the elder abuse problem in the wills context through two recommendations:
(i) improve lawyers’ understanding through national best practice guidelines; and
(ii) focus on community education to address the difficulties associated with ‘do-it-yourself’ wills.
