When a person’s legal competence or fitness is at question.

A recent article on Stuff highlighted the issue of capacity when an elderly man wrote his Will on post it notes from home, 11 months after being diagnosed with dementia, back in 2015. 

He changed his previous Will to give most of his estate to his first child and a woman he met at a Lions Club event, who also happened to be his neighbour (making her his enduring power of attorney too) and leaving just $5,000 each to his other two children. 

The man went on to change his Will again in 2017, this time excluding the first child from sharing the estate with his neighbour, and then again in 2018. 

While both later Wills were ruled invalid due to incapacity, the judge did rule that the 2015 Will was valid and so the majority of his estate was left to his first child and the neighbour. 

How could this happen you ask? While there is legislation setting out the level of capacity required to make a Will, the bar is set quite low. People will often tell their GP (who is not usually a specialist assessing dementia) that they have capacity when they don’t. 

Cases like this are a timely warning to everyone to sit down and carefully consider your wishes before ill health sets in so you don’t no need to be continually changing your Will.

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