Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 10 September 2016.
Wayne is 82. He is in good physical shape, apart from having some trouble getting around and suffering from some hearing loss.
Wayne’s nephew, Dave comes over once or twice a week to help out. He mows the lawn and does some of the cleaning that Wayne finds difficult.
Wayne has one younger brother, Michael, who is Dave’s father. Wayne has no children and no other immediate family.
Wayne decides to change his will, which currently leaves everything to his brother Michael. He decides he wants to leave his estate to Dave, who is newly married and has a child on the way.
Wayne visits his solicitor, alone and explains his intentions. The solicitor asks a number of questions about the effect of a will, Wayne’s relationship with Michael and Dave and about the nature and value of his assets.
Wayne details most of his assets, like his house, car and bank accounts. He remembers he has some investments, but can’t remember with whom and can’t recall their value. Wayne also has trouble hearing some of the questions, which results in some inconsistencies.
The solicitor recommends that before the will is made, Wayne obtains a medical assessment of his mental capacity to make a will. Initially, Wayne is incredibly offended by this.
However, the solicitor explains that “mental capacity to make a will” is a legal question that can be assisted by a medical report. He describes medical evidence as an insurance policy against a possible challenge to his will.
The solicitor explains that if Michael were to convince a court that Wayne was not of “sound mind, memory and understanding” when he made the new will, it would be invalid and Dave could end up with nothing.
Wayne agrees to the medical assessment. He sees his doctor and receives a favourable report. Soon later, in the presence of his solicitor, Wayne proceeds to make his new will which is stored in the solicitor’s safe custody, together with the medical report and the solicitor’s detailed file note observations.
