Page 18 - BOL Jul 22 Edition

Marbles: how to play; with

and without them.

This is the first part in a series that speaks about mental capacity an exhilarating read. However, the test remains the same, the person
from a legal standpoint. Specifically, what steps can be taken before wishing to complete a Will, or an Enduring document must:
a loss of ‘marbles’ and the process and steps that can be taken
without them. 1. Understand the nature and effect of the document; and
2. Make the document freely and voluntarily.
Identifying Capacity.
All too often, accusations are made that a person signing a Will, or
Mental Capacity as a whole can be somewhat of a shifting target and an Enduring document lacked capacity at the time the documents
difficult to identify. Therefore, we start at the end and isolate what were executed. While it is for the people making these accusations
we call “testamentary capacity”. Testamentary capacity (capacity) is to prove their case, a doctor’s certificate demonstrating capacity at
specifically the threshold required to execute a Will or an Enduring (or around) the same date the documents were executed is the best
Document, such as an Enduring Power of Attorney or an Advance defence available.
Health Directive.
If it is found that a person did not have capacity at the time of
Capacity strangely enough is a legal test, not medical. This means executing the Will, or an Enduring document, those documents
that a lawyer can determine capacity independently (or in rare are consequently voided. If there was a prior valid Will and other
cases, in opposition) to a doctor. Nothing about this concept is new. Enduring documents executed prior to loss of capacity, they are
In fact, the threshold for testamentary capacity was found in the in this instance revived. However, if no such document exists, the
case of Banks and Goodfellow, decided in 1870. The Queensland position is taken that the person would never have executed those
Government has recently published guidelines as to the assessment documents in the first place, and thus they do not exist.
of decision-making capacity. 56 pages long and for those interested,

Josh Zande is Solicitor at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North
Lakes, practicing in the areas of Wills, Estates and Retirement Law. To contact Josh for advice,
phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm
cannot take responsibility for any action readers take based on this information. When making
decisions that could affect your legal rights, please contact us for professional advice.

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