We are living longer lives. Australia has a higher life expectancy, than New Zealand, the United Kingdom and the United States of America. Male life expectancy rose to 80.3 years in 2014 from 80.1 in 2013 and female life expectancy also increased to 84.4 years from 84.3.
As a corollary, currently there are more than 353,800 Australians living with dementia, this is expected to rise to 400,000 in less than five years, and without a medical breakthrough is expected to be almost 900,000 by 2050.
Of those with dementia approximately 25,100 have Younger Onset Dementia (a diagnosis of dementia under the age of 65; including people as young as 30)
As those diagnosed increase it is likely that many more people with cognitive disabilities will make or change their wills near the end of their lives. Importantly the increase in wealth in the community means that more people have real and personal property to leave when they die.
As we have seen challenges are made to Wills for different reasons. Therefore if a person making a Will has suffered from cognitive impairment it necessary to have evidence of the will-makers Testamentary capacity at the time they made their Will so that it can be proven after their deaths.
Testamentary capacity has a foot in both legal and medical camps. As such it can cause difficulties in Courts. The legal test is almost entirely dependent on case law however to some extent it relies on medical evidence. However in a case where two medical experts give contrary evidence as to the capacity of the will-maker, the Court considered neither expert witness convincing, partly because they had little evidence of the day to day life of the will-maker to assist them in their testimony.
As a result, the evidence of the solicitor who took the instructions and was involved with the execution of the Will was considered more persuasive in preference to the evidence of other witnesses.
In another case, a medical expert concluded that the will-maker did not have will-making capacity when she made her last will based on the assumption that another doctor’s diagnosis of “emerging Alzheimer’s disease” was inconsistent with will-making capacity.
Courts have long held the idea that those with mental illnesses may be able to make wills during lucid periods. Medical evidence suggests that patients with dementia may have better days or better times of the day, however those with advanced dementia do not have long enough periods of lucidity to make a competent will.
Although the legal test tries to determine mental capacity at the very moment the will is made, in accepting evidence as to “good days and bad days” in one matter the Court noted:
“The clear psychiatric evidence is that the deceased was on a downhill path from 1989 onwards as a result of dementia. There were some better periods but the path was always downwards”
Unlike when the test for testamentary capacity was first promulgated an increase in people living with dementia is more likely to lead to challenges based on diminished cognitive skills of memory, judgment and reasoning that are crucial in making Wills. As societies understanding of the ways conditions such as Dementia impact on a person’s ability to know, comprehend and appreciate how their estate (which have become more complex in many ways)will be distributed through a Will it might be time for a more holistic view as to testamentary capacity.