My elderly mother who is the owner of significant assets is suffering from an onset of dementia. She insists on making a will but my brother is of the opinion that she cannot make sensible decisions. I am not sure what the appropriate way to proceed is.
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Answer by Neha Sharma, Hillsdale 2036 NSW
- Elderly persons in Australia are given significant legal protection against potential abuse from family members. Unfortunately it is not uncommon for children of elderly parents who have a significant estate to take advantage of their parent's vulnerable position.
- If a person is still capable of understanding what they are doing with their property and knows and approves the contents of a will then they may make a valid will.
- When your mother goes to a lawyer to draft her will the lawyer will interview her to assess whether she has testamentary capacity. This will include questions to gauge whether she:
- understands the extent of her property;
- knows wants to do with her property;
- understands any claims that may be made on her property by family members;
- understands what a will is and its effect; and
- shows any signs of mental disorder that may require a medical examination.
- If the lawyer is of the opinion that your mother may not have testamentary capacity and if a professional medical examination confirms this then an application under section 18 and section 19 of the Succession Act 2006 may be made to the court for a court-authorised will to be made.