Seattle University Collaborative Projects - International Academy of ...

There will be occasions when a living person will not have the capacity (nor the intention) tomake a will, sometimes meaning that after his or her death the estate will inevitably bedistributed under the intestacy scheme or in a way which may be inappropriate or even perversein the circumstances. In short, the person is alive, but is unable to make a will, although it canalready be seen that the distribution upon death will be unsatisfactory. The hiatus created by alack of basic testamentary capacity became a great concern in Australia during the 1990s. Thispaper will: briefly outline the reasons why law reformers and legislatures decided to give courts(and in some cases other authorities) the power to authorize/make wills on behalf ofincapacitated person; briefly outline the structure and content of legislative provisions, includingthe fact that the person for whom the will is authorized must be alive at the date of theapplication; discuss the kind of situations to which the legislation may apply such as ‘lostcapacity’, ‘nil capacity’ and ‘pre-empted incapacity’; discuss the concept of ‘lack oftestamentary capacity’ utilized in the legislation; the standard of evidence required to satisfy thecourt that the person lacks capacity; the standard of evidence which may substantiate theargument that the person will acquire or re-gain testamentary capacity; the kind of evidencewhich may assist the court in determining the person’s testamentary wishes in the absence ofcapacity; the extent to which (if any) the powers given to courts to authorize wills forincapacitated persons overlap with the powers accorded to protective authorities such asguardianship tribunals/boards and protective commissioners; Discuss whether there are anyinherent ‘dangers’ for abuse under the legislation; and refer to some of the principal cases whichhave arisen under the legislation.Old Shams and Older Victims: Legislative Monitoring and Moderating theDangers Associated with Equity Release in the United States and AustraliaFiona Burns, University of Sydney (fiona.burns@sydney.edu.au)Ageing brings with it two significant problems: its associated health issues (such as poorercognitive capacity); and the economic consequences of ageing such as lower economic growthand the increasing costs of publicly funded pensions and aged care. Equity release products suchas reverse mortgages are considered a viable way of individual seniors bearing day-to-day costsand some of the costs associated with ageing. While reverse mortgages have been touted as asolution for the ageing ‘crisis’, they are complex documents which some seniors have founddifficult to understand. There has been evidence (particularly from the United States) that seniorswho are ill or cognitively reduced (but still having legal capacity) have been subject to predatorylending, misleading advertising, fraud and estate planning scams. The purpose of this paper is toconsider what the major risks and complexities are which reverse mortgages may pose forvulnerable seniors in each jurisdiction (such as misleading advertising, cross-selling, yield spreadpremiums, negative equity, the nature of default, interest rates and administrative fees), takinginto account that reverse mortgages in these jurisdictions may differ, and to compare andcontrast how the governments in both countries have legislatively and administrativelyresponded to the risks created by reverse mortgages with an eye to the whether the processes and55