Death Caused by Dementia in the Elderly and Testamentary Capacity in Creating Wills

With the number of elderly citizens increasing in Australia, more people are dying as a result dementia, as well as other similar disorders. Since people are continuing to live longer on average, they are also able to build up greater amounts of wealth. This can often lead to some difficult litigation, by people claiming that wills were made by those without the capacity to make proper decisions.

The appropriate court is the only entity with the jurisdiction required to decide on these matters. They will generally use a specific test, which includes the following requirements:

  • The person making the will needs to understand the legal significance related to creating the will.
  • They must be at least generally aware of the extent, nature, and value of their assets.
  • They must understand who might be able to claim their accumulated wealth, as well as why and how such people can make claims.
  • They must be able to decide the validity of people who make claims for the aforementioned wealth. No “disorder of the mind” should be able to skew their decisions.

In these types of circumstances, it is sometimes too easy for disgruntled beneficiaries to appear, and start litigation to overturn a will. Without proof as to the mental well-being of the deceased, these cases can be particularly trying. Even if your will is upheld in the end, the legal costs might have taken a toll on your intended beneficiaries.

Case-by-Case Basis

Previous cases have demonstrated the need for this type of will hearing to take place on a “case-by-case” basis. When it comes to testamentary capacity, it is not always possible to prove something either way. Yes, if someone is able to demonstrate that they meet the above requirements, there should be not problem in the eyes of a judge. However, it is also desirable for people to seek competent legal representation when they are drawing up a will.

Medical Reports

It is also a good idea to have get a medical report, to ensure that there is evidence regarding testamentary capacity. Otherwise, the deceased’s estate might not go to the people that they listed as beneficiaries. The notes of the medical practitioner should also be obtained, so that they are easily available, should the case end up in litigation.

Creating a will using one of the “will kits” that you might have seen in the stores, is a good way for your fortune to wind up with the wrong person. Medical assessment is a necessity, even if you have no reason to believe that your testamentary capacity will fade in the future. If your mental faculty should diminish later, the fact might be used in an attempt to prove that you were not of sound mind and body when your will was created. If you are diligent, and go through the formal legal channels when creating your will, you can save your intended beneficiaries a lot of trouble with needless legal battles.