Wills and Testamentary Capacity

In relation to another matter we are handling, we tried unsuccessfully to contact a lawyer who had prepared a Will for a now-deceased client.  That lawyer is himself now under care and unable to assist. We are now having to chase medical records going back to 2004 from the medical practice the client attended, and his usual treating doctor has since retired, which makes it harder still.

Therefore, I confirm that it would be a really good idea to get a letter from the solicitor that prepared the Will, to keep with the Will, to use when applying for probate. If there is evidence that the testator lacked testamentary capacity or did not intend to make a will or the particular will that was made, the matter could be raised in probate proceedings and that could prevent a will from being admitted to probate.  The letter should contain this sort of wording:

On [Date] I prepared a Will for my client, [Full name of testator/testatrix] (My Client).  At the time the Will was made, I satisfied myself that My Client:

  • was of a sound mind; and
  • understood:
    1. that she was making a testamentary document;
    2. the extent and nature of her obligations to her relatives and others;
    3. the extent of the property of which she could dispose; and
    4. what her estate comprised of; and
    5. that she wanted the named beneficiaries in the Will to receive the gifts specified.

My Client then signed the Will in the presence of me and [full name of the other person], as the other subscribing witness.  We then signed the Will in each other’s presence and that of My Client. If you found this article helpful, please consider providing a Google Review HERE and/or like us on Facebook, HERE. For help and advice on estate planning issues contact Michael Paterson & Associates (08) 9443 5383 | www.patersons.com.au

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Chat:
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Correspond:
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Coffee:
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Osborne Park
Western Australia 6017

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