Elder Abuse and Lack of Capacity: Contesting the Will

Elder Abuse and Lack of Capacity: Contesting the Will
Posted on 17 Feb 2021

Lately, there has been an increase in discussions about elder abuse. 

Elder abuse is, very broadly, where an older person or a person who lacks capacity is taken advantage of by family, friends or carers. 

One way in which elder abuse may occur is through changing the will at a time where the testator (that is the person making the will) did not have the proper capacity to understand what they were doing.  It may be that a family member or close friend has helped the person make a new will of which that ‘helper’ is the new beneficiary and the testator’s child or spouse is no longer a beneficiary. 

If the circumstances around the new will seem a little out of the ordinary for a testator or if you think that the testator did not really understand the nature and consequences of the change, then you may be able to ask the court to intervene. 


Testamentary Capacity

It is presumed that every adult has the capacity to make decisions until proven otherwise.   In relation to making a will, the required capacity is known as ‘testamentary capacity’.  Testamentary capacity will exist if, at the time of making the will, the testator: 

  • understood the nature and effect of making the will;
  • had knowledge of the extent of the property that they were disposing of (ie. a house, investment property, shares etc); and
  • understood the different people who may have a claim on their estate (Banks v Goodfellow (1870), LR 5 QB 549)

If the testator did not have testamentary capacity at the time they signed the will, you may be able to ask the court to prove the will.  This is a process where the court will look at all of the relevant material and determine whether or not the testator had the required testamentary capacity to make the will. 

Some potential indicators that capacity may have been lacking at the time the will was made include:

  • where the testator suffered from a medical condition, or was on medication which could have impaired their ability to make decisions;
  • if you saw that the testator experienced any short term or long term forgetfulness, confusion or changes in the way they communicated;
  • if there was doubt as to whether the testator could clearly communicate their wishes;
  • where the will is substantially different from an earlier will;
  • where a close family member has unexpectedly been cut out of the will;
  • a friend, family member or carer who was not in earlier wills is now a key beneficiary; or
  • where the will was not prepared by the testator’s usual solicitor.

This is not an exhaustive list, you may have indicators which are unique to your situation which suggest a lack of capacity. 


Protect your interest

A person who has an interest in an estate can ask the court to prove the validity of a will if there is evidence to suggest that the testator did not have the required testamentary capacity when the will was made.  This is known as proving the will in solemn form.

If the court determines that the will is invalid, then the estate of the testator may be distributed in accordance with the next most recent will.  If there is no other will, then the estate will pass under the laws of intestacy. 

If you believe that a family member or close friend has changed their will when they perhaps did not understand what they were doing, you need to act quickly. 

Although there is no strict timeframe for proving a will, the executors can start to distribute the assets of the estate six months from the date of death.   A caveat may be lodged against the estate to temporarily stop the grant of probate.

Our experienced estate litigation lawyers will be able to advise you on whether you have grounds to seek the court’s intervention and on any steps you may take in the meantime to protect your interest.

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