A question of capacity

In the recent decision of Re Dohle [2022] QSC 4 the Queensland Supreme Court considered the question of sufficient capacity to make a will.

It is settled law that in order to have sufficient capacity to make a will, a will maker must:

(a) understand the nature of the act of making a will and its consequences;

(b) understand the extent of property of which they are disposing;

(c) understand the claims that potential beneficiaries might have to their estate; and

(d) not be affected by delusion or influence which might affect the reasonable assessment of the distribution of their estate.

In Dohle a medical practitioner had given a letter to the effect that the deceased had been incapable of making financial decisions. However a full assessment had not been made, and the lawyer who took instructions for the will (an experienced practitioner) was able to give evidence of the will-maker’s apparent understanding of matters. In that case, the Court found that the will maker had the requisite capacity to make a will.

One critical aspect to this was the extent of the lawyer’s interview with the will-maker, and the impression that was obtained as to the knowledge of the will-maker. This would not have been the case if (for example) the instructions had been brief or perhaps it had been a “will kit”.

Also it is interesting to note while we are speaking of capacity, that under the Queensland Powers of Attorney Act, a person can only revoke an enduring power of attorney if they have sufficient capacity to make a new one. The making of an enduring power of attorney is not necessarily a simple thing, the forms are very lengthy and there are a number of things to consider. As a result, the effect of the legislation is that a person has to have capacity to make decisions as to quite complex matters, to be permitted to make a decision which would not involve a consideration of very complex matters at all, i.e. whether or not to revoke the grant of the attorney because they have lost faith in the attorney.