A recent judgment from the Supreme Court in Queensland confirmed that Succession Law Accredited Specialists have the necessary skills to assess testamentary capacity, that is, the mental ability to make a will.

The test for testamentary capacity has ever been a legal test, notwithstanding that the evidence of suitably qualified doctors is useful in that assessment.

The judgment referred to above was delivered during an application for a court-ordered or “statutory will”, where the applicant failed to adduce the required evidence of lack of testamentary capacity. The judgment may be read by following this link: Re Hay [2016] QSC 106

In the case, a financial administrator had been appointed by a court, which would have required evidence of the person’s lack of capacity to manage her own financial affairs, but evidence for that lack of capacity is quite different from the capacity to make a will. Courts are concerned with evidence of the particular elements, and do not assume that lack of capacity for one task equates to lack of capacity for another. It is essential in an application for a court-ordered will that there be evidence that the person lacks testamentary capacity before the court can begin to assess whether or not it is appropriate that orders be made approving a will for the person.

The judge hearing the application ordered that an assessment of testamentary capacity be obtained from an independently engaged Succession Law Accredited Specialist, and that if, in the opinion of the Specialist the person has testamentary capacity, that the Specialist assist the person to execute a will consistent with the person’s wishes.

These orders reflect the considerable respect Queensland judges have for the specialist skills and qualifications of Accredited Specialists in this area of practice. From a practical perspective, they further confirm the vital role that Accredited Specialists play in assisting will-makers to order their affairs, particularly if there is doubt about capacity, but also in general estate planning.

The skills and knowledge of a Specialist lawyer go beyond assessment of capacity and, in addition to the practical knowledge that comes from years of experience, include technical skill and knowledge that afford will-makers with a vast range of options for ordering their affairs in the most effective way.