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What should I do if I think my mother's dementia is going to prevent her from drafting a will?

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.
Asked in Newcastle - Newcastle and Lake Macquarie, NSW, 29-10-2015
1 Lawyer Answered
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  1. Elder
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.

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.

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