Legal Hypothetical – Handling issues of dementia


IN his early sixties, Frank is diagnosed with a relatively aggressive form of early onset dementia.

Aware that he is not well, he asks two of his children, Pat and Betty to help him organise his affairs.

Pat and Betty are concerned that Frank does not possess the requisite capacity to make a will and they ask him if he already has one.

Frank cannot remember.

Worried about Frank’s deteriorating condition, Pat and Betty book an appointment with a solicitor who specialises in estate planning.

The solicitor advises that a diagnosis of dementia does not necessarily mean that Frank is unable to make a will.

He explains the legal test for capacity, being that Frank can execute a will so long as he: understands what a will is, is aware in general terms of the nature of his assets, is aware of the beneficiaries who can make a claim on his estate and can evaluate the strengths of any potential claims.

Frank has an interview with the solicitor in which Frank explains that his wife passed away three years ago and he is survived by three children, Pat, Betty and Rhonda.

Although Frank is close to Pat and Betty, he has not spoken to Rhonda for over twenty years after a falling out.

After the interview with Frank, the solicitor is satisfied that he possesses capacity and drafts Frank a simple will in which he gifts $100,000 of his $600,000 estate to Rhonda and splits the residue equally between Pat and Betty.

The solicitor requests that Frank obtain a letter from his Doctor confirming capacity.

The letter is promptly received by the solicitor and placed in the solicitor’s safe with the original will.

Thank you to Jamie Visco for his assistance with his column. If YOU would like a particular issue addressed, please email Manny at [email protected] or call him on (02) 6648 7487.


By Manny WOOD, Solicitor

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