In the NSW Supreme Court case of Lim v Lim [2022] NSWSC 454 the Court held that a 89 year old woman’s last will was invalid because she lacked testamentary capacity i.e. the mental ability to make a will and, therefore, did not know or approve the contents of her will.
The Court stated that it is the duty of a solicitor taking instructions for a will to ensure the client has testamentary capacity and is giving instructions freely and voluntarily.
In this case, unfortunately, the solicitor had no prior contact with the will-maker, did not know about the principles of testamentary capacity (now that is bad), did not ask about her age, background or assets, her relationship with her children or whether any family provision claims could be made. As the Court said, he did not make the enquiries that would be expected when dealing with an elderly person.
From my own experience, I have been instructed by people in their nineties who are mentally sharper than people 20 years younger. Testamentary capacity has to be judged on a case by case basis. But if the assessment is not handled properly, it can have the devastating result of a will being invalidated.
July 2022