Case Update: Hamrak (Estate) v Jobst - Why lawyers must assess capacity
The recent case of Hamrak (Estate) v Jobst highlights a crucial responsibility for estate lawyers: ensuring that a client has testamentary capacity when making or updating their will.
What is Testamentary Capacity?
To make a valid will, a person must:
Understand the nature and effect of making a will;
Know the extent of their assets;
Recognize the individuals who might reasonably expect to benefit from their estate;
Appreciate the implications of including or excluding certain individuals; and
Be free from any delusions that could influence their decisions regarding their estate.
Why Capacity Matters
Lawyers play a crucial role in confirming a client’s testamentary capacity. If your lawyer suggest additional steps - like seeking a medical opinion - please know this is not a judgment. These precautions are taken to protect your wishes and help ensure that your will is legally sound and resistant to future challenges.
In the case of Hamrak (Estate) v Jobst, the deceased made a will in March 2022 and then made a new will in November 2023. While there were no concerns regarding capacity in 2022, by the fall of 2023, his health had declined and he was suffering from advanced dementia.
Unfortunately, the lawyer who prepared the 2023 will made no notes about assessing the client’s capacity or confirming that he understood the will’s contents. As a result, one of the deceased’s sons challenged the 2023 will on the basis of incapacity. The court agreed, invalidating the later will and reinstating the 2022 will. The process, however, cost of $17,000 in legal fees - a potentially avoidable expense had capacity been properly assessed and documented.
How Lawyers Assess Testamentary Capacity
To safeguard your intentions and the integrity of your will, lawyers follow several best practices:
Conducting thorough interviews: When preparing a will, we will require on a face-to-face conversation at some point in the process (in person where possible, but this can be done virtually if necessary). We must have a detailed discussion about your assets and the effect of your will, to make sure that you have the necessary capacity, and to make sure that no one else is unduly influencing your decisions.
Documenting observations: Your lawyer should make comprehensive notes of your discussions and any factors that either support or call into question your capacity. These notes become very important if the will is ever contested.
Seeking medical opinions where necessary: Sometimes it is clear that there is no issue of capacity, and no further steps are required. Other times, if there is any doubt, a formal capacity assessment may be suggested to provide additional clarity. Even if your lawyer does believe that you have capacity, in some cases obtaining a medical opinion can add an extra layer of protection against future disputes.
Failing to adequately assess and document testamentary capacity can lead to legal challenges, expenses and possibly invalidating the will. Taking the time to do it right is an investment in peace of mind for you and your loved ones.
If you have any questions about testamentary capacity or would like to discuss your estate planning, please contact us to schedule a consultation
This blog post is for informational purposes only and is not intended to provide legal advice. If you require legal assistance, before taking any action you should contact us or another qualified lawyer to discuss your situation.
