LSB September 2022 LR

AGEING & THE LAW
Advice for young practitioners
in succession law navigating
issues in an ageing population
MIKAYLA WILSON AND JULIA WELTNER, SOLICITORS, SEDSMAN LEGAL
As practitioners in the area of wills
and estates, many of our clients
engage our services as they approach
their later years in life. In our experience,
ageing clients can be more susceptible and
vulnerable to influence, commonly from
their own friends and relatives. Accordingly,
when we are preparing documents for
ageing clients, it is necessary to keep
issues such as capacity, undue influence
and coercive control, in the front of our
minds. In our view, the older population
now have noticeably more wealth than in
the past, partly due to increasing property
prices and superannuation, therefore these
issues are unfortunately becoming more
common in the context of Australia’s
ageing population.
Whilst experienced practitioners in
this area are well versed in identifying
and navigating these issues in the course
of practice, we know from experience
that these issues can often be subtle and
require some gentle investigating by the
solicitor. As two young practitioners who
have the benefit of being guided by very
experienced solicitors in this area, this
article will endeavour to provide some
useful tips and tricks that we have learnt
so far, to assist emerging practitioners in
the field of succession law with advising
ageing and/or elderly clients.
TIP 1: BE ALERT TO CAPACITY ISSUES
It is widely known that people become
more susceptible to cognitive issues as
they age. In 2016, almost 1 in 10 people
aged 65 and over were suffering from
Dementia. 1 Dementia can cause memory
loss and cognitive impairment which
affects a person’s ability to reason and
rationalise complex matters, which may
affect their ability to understand their
estate planning documents. Accordingly, it
is important to carefully assess each client’s
capacity in the course of taking their
instructions.
While the test for assessing capacity
may be obvious to experienced
practitioners, the writers are aware that not
all graduates are familiar with the principles
found in Banks v Goodfellow. 2 Despite being
a case from 1870, it continues to be the
leading authority on assessing testamentary
capacity in Australia.
In Banks v Goodfellow, the Court
determined that in order to have
testamentary capacity, the testator must:-
• understand the significance of making
a will;
• be aware in general terms of the assets
comprising their estate;
• be able to retain the ability to
evaluate and discriminate between
the respective strengths of competing
claims demonstrating appreciation of
the consequence of their decision; and
• be free from delusional thought or
other disorders of the mind which may
influence decision making as to who
should (or should not) benefit from
the will.
It is not necessary to perform a mini
mental or have your client answer a myriad
of questions about current affairs of the
last decade to assess whether your client
has testamentary capacity. You could
simply start by asking your client about the
weather, asking how they travelled to your
office, or what they have been up to earlier
in the day. Often you will be satisfied of
the four fundamental requirements in
Banks v Goodfellow by asking your client the
usual will instruction questions i.e., asking
about their family situation, relationship
status, assets and liabilities and how they
wish to distribute their estate. However,
if any concerns do arise, make notes
regarding the same and discuss them
with a senior practitioner. If capacity is in
question, you should consider whether it
is necessary to request a letter of capacity
from a medical practitioner prior to
preparing or executing any documents.
TIP 2: TAKE YOUR CLIENT’S
INSTRUCTIONS ONLY
Often ageing clients need assistance
with arranging and travelling to and from
appointments and accordingly, clients
are regularly accompanied to our office
by their family members or friends. In
many instances, those in attendance may
be potential beneficiaries of their Will or
appointees on their other estate planning
documents. It is important to see your
client alone to take instructions.
If your client attends with a family
member/s, politely ask them to wait in
another meeting room for the duration
of the appointment. In the writers’
experience, most family members will
understand and respect the request.
However, if we are met with resistance,
we explain that it is our firm’s policy and
that we will not take instructions from the
client with others present. The presence
of others in the meeting can obviously
affect the client’s freedom to discuss their
true wishes and intentions and may also
lend to an inability to properly assess your
client’s capacity (i.e., if the family member
is answering questions about the client’s
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THE BULLETIN September 2022