In the recent South Australian case of Roche v Roche [2017] SASC 8 the Court found the testator, John Roche, had testamentary capacity despite a dementia diagnosis having been made.

The parties to the dispute agreed that, at the time of the signing of his Will in 2006, the testator was suffering from, or in the early stages of, frontotemporal dementia. The dispute concerned whether the condition compromised the testator’s testamentary capacity.

In summary, the Court confirmed that the test for testamentary capacity is concerned with whether the testator comprehends the nature, extent and value of their estate, the capacity to evaluate and discriminate between competing claims on that estate, and the practical legal effect of the testamentary disposition, rather than the testator’s choice of beneficiaries or disposition.

The Court held that the combined evidence showed John had comprehension sufficient to have testamentary capacity.

Points of interest from the case are:

1. Less than optimum mental capacity, caused by age or disease, which does not impede capacity to appreciate the extent and disposition of an estate, will not necessarily deprive the testator of testamentary capacity, if the testator had sufficient testamentary capacity when the will was signed.

2. Around the time of executing the 2006 Will John wrote two documents, one addressed to his solicitors and one to his trustees, recording his Will instructions. The court found that the letters of instruction were strong evidence that John understood the nature and extent of his estate, the competing claim of his daughter Shauna (the applicant) on the estate, and the consequences of his instructions.

3. Written notes made by John’s solicitors at the time of signing of the 2006 Will evidenced John’s behaviour at that time and that John was cognisant and coherent in his understanding of the complex family business, transactions being undertaken and consequences of his 2006 Will. Testimony of the solicitors supported the written evidence. The Court found John’s statements evidenced in the notes and testimony indicative of testamentary capacity.

The case shows that, prima facie, old age and dementia does not mean a testator lacks testamentary capacity. Having a Will prepared by a solicitor will assist in providing evidence that the testator had capacity sufficient to have testamentary capacity at the time of making the Will.

The South Australian decision is relevant in Queensland as the test for testamentary capacity is a common law test. The full decision can be found at Austlii.

For further information and assistance on any estate planning or estate administration matter, please contact a member of our experienced Wills, Trusts and Estate Planning team at Bell Legal Group on (07) 5597 3366 or email Tracey Carroll.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice.