In Australian law when an individual dies their assets (which form their ‘Estate’) pass according to the terms of their last or most recent validly executed Will. If a deceased’s last Will was executed after the testator had lost legal capacity then family members may object to that Will being ‘proved’ as a valid Will truly reflective of the deceased’s testamentary intentions. In such event, medical evidence as to the Testator’s condition at the time the Will was executed, and the evidence of the witnesses to the Will (particularly if witnessed by a lawyer) would be highly relevant to the capacity of the testator. If a Will is not proved on the basis of incapacity then the applicable Will becomes the most recent prior Will. If there is no earlier Will, then the deceased’s Estate would pass under the laws of intestacy.

Whether or not a Will is proved or an Estate passes under the laws of intestacy, dependents such as spouses and children may challenge the distribution of the Estate on the basis of ‘inadequate provision’ being made for them. This area of law is often referred to as Testator Family Maintenance law.

However, what avenues are available to family members concerned that an elderly testator may have executed a new Will while of unsound mind before that person has actually passed away? Family members may bring an application on behalf of the testator for a ‘Court-made’ or Statutory Will on behalf of someone who, for whatever reason, is unable to execute their own Will.

The exercise to determine how the Estate should be distributed under a Statutory Will does not concern the Testator’s moral obligations, or likely beneficiaries. Rather, evidence needs to be adduced as to what the intentions of the Testator were likely to be, or might reasonably be expected to be, if the Testator had the requisite capacity. Unless evidence exists in the form of prior Wills, letters of Testamentary intentions, or first-hand evidence from family members, such as notes taken at family conferences or the like, then it is unlikely that a Court will have the necessary information to make a Statutory Will.

In the meantime, if the Testator has been taken advantage of and executed a Will either unknowingly, or in a state of confusion, then there is little legal recourse for aggrieved family members or intended beneficiaries until the testator passes away and Testator Family Maintenance rights crystallise. If a considerable period of time elapses before the testator passes away then the evidence as to the execution of the Will may weaken. For example, the recollections of the circumstances leading to the execution of the Will by witnesses may fade with the passing of time, or witnesses may die or become incapable.

Wills and Estates practitioners often perceive this area of Estate planning to be legally deficient. Wednesday 15 June is World Elder Abuse Awareness Day.  The day aims to focus global attention on the problem of physical, emotional, and financial abuse of elders, and to lobby governments and decision-makers to develop more elder-friendly policies.  Recent studies conducted by State Trustees have suggested that elder abuse is rife in Victoria, with as many as half of elderly people lacking capacity being taken advantage of, either while alive or under the terms of their Will. The most common form of abuse is financial abuse. In Victoria, a Will does not need to be prepared or drafted by lawyers, or even witnessed by a legal, or other, professional. A witness to a Will who is not a professional is not obliged to undertake any particularly level of enquiry to satisfy themselves that the person executing the document is of sound mind. They do not have to confirm that the individual understands, or has even read, the Will itself.

There has been recent legislative changes made to the law surrounding Enduring Powers of Attorney. The changes increase the legal requirements as to the execution of Powers of Attorney documents, including the witness provisions. The changes also increase the penalties for Attorneys acting improperly. Similar changes to the laws governing the execution of Wills would assist to safeguard against elder abuse whereby individuals – who are often younger family members – ingratiate themselves or otherwise take advantage of the elderly for their own financial gain by encouraging them to execute new Wills when lacking the requisite legal capacity.

All Australians over the age of about 25 years, should have a Will. Presently, it is estimated that approximately one half of Victorian adults do not have a Will. You should consult a lawyer as to Estate planning for the execution of a Will. You should generally review your Will every 5 years or where your circumstances change significantly, such as growth in personal assets, marriage, children, grandchildren, or the like. You may ultimately not need to execute a new Will each time you obtain advice. However, only in this way will there be evidence as to the development of your testamentary intentions over time. This may in turn protect you against the possibility of elder abuse in later life.

Clancy & Triado Lawyers handle all aspects of Estate planning, Wills and Powers of Attorney, Guardianship applications, disputed Wills and Testator Family Maintenance Claims.