Establishing legal capacity is crucial, especially when contesting a will. It’s not always as straightforward as it sounds. The Supreme Court case of d’Apice v Gutkovich illustrates this complexity. In this case, Irene Abrahams (the deceased) was found to have the capacity to make a will, despite a prior decision by Guardianship Tribunal indicating she could not manage her affairs.
What is Legal Capacity?
Generally, legal capacity requires a person to:
- understand the facts involved regarding the decision to be made;
- comprehend the choices available;
- Evaluate those choices and their likely effects;
- Communicate the decision clearly.
It’s important to note that legal capacity requirements vary depending on the context. For wills, the foundational principles were established in the 1870 case of Banks v Goodfellow, which has withstood the test of time.
Its language is descriptive:
A person making a Will must “…understand the nature of the act and its effects; … understand the extent of the property of which he is disposing; … be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural facilities…”
The test underscores the need to assess cognitive ability and ensure the will-maker understands their assets and potential claims on those assets.
Task-specific Legal Capacity
Will lawyers have understood that the assessment of legal capacity is task-specific. It varies based on:
- The complexity of the will;
- The nature and extent of the will-maker’s assets;
- Personal circumstances of the will-maker
For instance, “a simple will can be made by a severely demented person, while a complex will may be beyond the capabilities of someone with mild dementia”.
Power of Attorney and Legal Capacity
The capacity to make a power of attorney differs somewhat from making a will. A power of attorney allows another person to exercise legal and financial functions on behalf of the donor.
It’s essential to ensure that the donor understands they are authorizing someone to manage their affairs and the implications of this authority. With the assistance of a will lawyer at Matthews Folbigg, we will ensure that the donor understands the effect the power of attorney has and that they are authorizing someone to manage their affairs and the implications of this authority.
Further, if the power of attorney is to be irrevocable in the case of mental illness, it is important that the person providing the power of attorney clearly understands this.
The Growing Importance of Legal Capacity
As people live longer, issues related to capacity are becoming increasingly common, particularly with conditions of dementia. Therefore, it is vital to seek professional advice from a will lawyer, if capacity may be in question, especially when it comes to contesting a will or making a will dispute.
If you need assistance navigating these complex legal issues, including contesting a will, don’t hesitate to contact one of our experienced will dispute lawyers at Matthews Folbigg. We’re here to help you ensure that your legal document reflect your true intentions and protect your interests.
