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  • A diagnosis of dementia is not determinative of whether a client has capacity to make a will.
  • The Court of Appeal has recently confirmed that the evidence of an experienced solicitor may be entitled to substantial weight in contested capacity cases.
  • Contemporaneous documentary evidence from your file can be critical in assisting a court to determine whether your client had testamentary capacity at the time of making the will.

According to Dementia Australia, in 2022 there are an estimated 487,500 Australians living with dementia and, without a medical breakthrough, the number of people with dementia is expected to increase to 1,076,000 by 2058.

Quite often, a diagnosis of dementia will prompt a person to get their affairs in order, and they may want to make a new will. The recent Court of Appeal decision in Starr v Miller [2022] NSWCA 46 (‘Starr’), provides insight into what a solicitor can do to improve the chances of a will withstanding a challenge on the grounds of lack of capacity.

Recent NSWCA case  

In Starr, the will client was referred by her general practitioner to a psycho-geriatrician who started treating her for Alzheimer’s disease in December 2011. In February 2012, she telephoned her accountant to ask if he would accompany her to see her solicitor about a new will. The accountant arranged the meeting with the solicitor and expressed concern to him that the client was in the early stages of dementia.

The will client was clear in her instructions. She wanted the daughter who was living with her to receive the ‘farm’ and the off-farm assets were to be divided between her other three daughters. The accountant suggested that she might consider transferring the farm inter vivos and the solicitor expressed some reservations about this.

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