Testamentary Capacity

Australians, in general, are growing older.

One of the side effects is that in the last five years, there has been a sharp rise in the incidence of attacks on Wills, based on the argument that the Testator (the person who signed the Will), did not have capacity to make a Will, at the time the document was signed.

There is hot debate even among the legal profession, as to how to deal with this issue.

Essentially, it is a medical issue.

The test for testamentary capacity (do you have enough marbles to make a Will), revolves around the question, “do you have sufficient capacity to understand the nature and effect of the document that you are about to sign?”

This might seem like and easy question to answer and medical assessments are commonly made in this situation.

Unfortunately, up until recently, Lawyers have attempted to make this assessment themselves.

Bennett Carroll was one of the first law firms to create a checklist and a regime to identify people at risk and then institute a medical assessment process to ensure that adequate expert evidence is available, rather than the vague observations and questions of a Lawyer who is not medically trained.

The Bennett Carroll system involves checking, in every case, for the presence of any risk factors that might identify a person whose capacity may be questioned in the future.

These triggers are:

1.     Significant age, that is, 70 years or more;

2.     Any prescription medication;

3.     Any medical operation which has occurred in the last six (6) weeks;

4.     Hospitalisation in the last six (6) weeks;

5.     Any “significant illness”, that is an illness which would have any possibility of affecting someone’s ability to make a decision;

6.     If the client is brought in by a relative in circumstances where there is some suggestion that the client’s capacity is impaired.

This is not about targeting people whose capacity is impaired.  The sole purpose of this process is to obtain evidence to prevent a successful attack, often made many years later where records are lost or recollections have faded.

It is a protection measure, rather than some sort of slight on the testator.

If the evidence is obtained at the time of the signing of the Will, there can be no allegation against the Will on the basis of capacity, which has any prospect of succeeding.

A medical practitioner is asked to indicate in writing an opinion as to whether or not the testator has sufficient capacity to understand the nature and effect of a Will, if one were prepared for them.

This necessitates a test process undertaken by the practitioner, who will then produce a short written report.  This should be all that is required to prevent a successful attack on the Will document.  This simple precaution ensures that the time and for the money spent on an estate plan is not wasted.

Surviving your divorce: Chapter 2- Deciding if you want to proceed

1.         WHAT IF I DO NOTHING?

At the first interview or at some stage after it, you may decide you want to take the next step and proceed with resolving these issues. 

One of the options almost always available to you is to do nothing. 

Indeed, sometimes, doing nothing is the best option available either because you already hold the upper hand or because circumstances are improving all the time. 

Most often however, any advantage is lost over time, and acting quickly will either gain or keep any advantage available.

As you can see, there is a balance here between acting quickly to keep or gain advantage, or to press for a change of attitude, and acting with haste and making a mistake.

The key to determining which of these you are undertaking is knowledge.  You need to understand what is being risked or spent and what is likely to be gained from that risk or expense.  It is the job of your adviser to get this across to you accurately, based on the law and the adviser’s experience, in a language you understand.  If he/she cannot do this to your satisfaction, change advisers!

2.         IF I LEAVE THE HOUSE DO I LOSE MY RIGHTS?

Some people fear that if they move out of the house they lose control or lose their rights to any share of the property, which is often the major asset in the relationship.

There are several components to this issue:-

            (i)            The right to enter;

            (ii)           Sale of the property;

            (iii)          Ownership of the net proceeds.

The Right to Enter

When a relationship ends, occupancy of the matrimonial home can often be an unnecessarily contentious issue.  Your entitlement to a share in the net proceeds, or the equity of the property is determined by a whole range of issues.

Whether you live in the house is really irrelevant to that determination.

Except in very unusual circumstances, one or other of the parties will leave the home.  In the majority of cases it will be the person who is not caring for children on a day to day basis.

It is possible to obtain an Order from the Court to get what is called “sole use and occupancy” of the home.  At its simplest this involves kicking your Ex out to obtain exclusive control of the premises.  This Order can be enforced to keep your Ex off the premises.

If you cannot agree on arrangements for the house and you are intending to stay, it is important that you take steps to secure it against uncontrolled entry.  After taking legal advice it is likely going to be in order to change locks on the house.  Ensure you seek advice before doing this as there are a couple of dynamics to consider here.

The registered owner will have the ability to sell that house as any registered owner does.  You should know or at least check to see whether your name is on the Title.  If your name is on the Title for the house, then the house cannot be sold without your consent and without you signing the Contract.  In those circumstances, relax.

If your name is not on the Title Deed, then it is important that you make sure that you have some control over the process of selling the house, and therefore control over the proceeds of sale. 

Your Lawyer can engineer a process whereby the property is not sold without your consent and if it is sold, the proceeds are quarantined so that your share is not lost.  If you are not listed on the Title Deed, it is essential that you act quickly to secure this protection. 

3.         DOCUMENTS TO BE SIGNED

The Government requires any Lawyer to inform you in writing of how the arrangement will work.  This means signing a Costs Agreement. 

Lawyers are not supposed to act for you until that Agreement is signed and financial agreements have been settled and funding organised.  Getting this out of the way quickly will keep your matter flowing.  But you have the right to take the documents away and it is vital that you read and understand them.  These documents govern your relationship with your adviser and his/her firm.  They will be the primary rules for any query, misunderstanding or dispute between you.  Read them, understand them, ask questions of your adviser if you are unsure (you do not have to pay for explanations about the costs agreement), and even take independent advice about them if you have to.

Particularly important to your understanding is a clear control of what you are going to be asked to pay and when.

Funding of family law matters if difficult and the methods available to law firms and clients vary greatly, as does the quality of care and speed with which matters are run, depending upon the firm and the credit arrangements made.

It is common for law firms to temporarily or permanently stop work on files when the client has not or cannot pay the cost of this work.  The Courts and legal watch dog support this right, provided certain rules are followed.

It is important that the speed of your matter and any tactical advantages available are not compromised by having to stop work or chase you to meet your funding and credit obligations.  It is in your interests to keep these arrangements up to date. 

You need to have a clear plan and regular contact with your adviser or the person in the firm who deals with credit, so that you are not surprised or caught short, compromising your strategy in the matter.

Your adviser has an obligation by law to provide you with an estimate of the future cost of the matter and to keep this estimate current.  These matters have common characteristics and an identifiable skeleton and milestones but, like estimating the size and weight of an adult by looking solely at the birth weight,  the final size and shape can vary wildly.

Providing an accurate estimate is not easy.

There is a large range of matters that affect the cost of a family law matter, many out of the control of you and/or your adviser. 

Some are:

1.                  needy client

2.                  obnoxious opponent/law firm

3.                  lazy opponent./law firm

4.                  uneducated opponent/law firm ie unaware how the law works client pays for us to educate them

5.                  opponent tactical use of delay to run up costs for our client

6.                  unexpected complexity

7.                  additional instructions (things you didn’t advise originally)

8.                  urgency

9.                  lack of funding

10.             Client tardy in providing instructions at each step requiring constant chasing

11.             chasing additional material from your accountants and others.

12.             attending to basic matters on your behalf which you do not really need a lawyer for (eg redirection of mail)

13.             government agencies and court registries changing procedure requiring additional material

14.             you not following advices provided and getting yourself into deeper water requiring more steps to be taken to extract you

15.             you providing instructions which are counter-productive to securing an outcome ie to “point score”

As you can see, all these things can increase complexity, delay and cost, and several of them you can control.

If you want a result at minimal cost and time, you need to understand your role in it and that of your adviser, and work together to reach that goal.

Open House- Conveyancing advice from a Lawyer

Bennett Carroll CEO, Guy Gibbons answers frequently asked questions when attending an Open House.

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