You cannot sign a will if you do not understand what you are doing. In legal terms if you “lack capacity”. To demonstrate that you do have capacity, you must:
- Understand what a will is.
- Know what you own and its value.
- Be aware of any people such as family members who may have a claim on your estate
- Not have health conditions, physical or mental, that affect your decisions.
In a recent case, a mother signed a will in New South Wales in 2017. In 2020, she signed a new will in Thailand. When you sign a new will, it replaces the old one. The daughter argued that the Australian will was valid because the mother did not have capacity to sign the Thai will. The Australian will left the daughter $1.1 million in shares. The Thai will left the daughter no shares. The son argued that the Thai will should be valid because it was the most recent. The mother was diagnosed with lung cancer in 2018 and died in 2021. She was the owner of a Thai restaurant chain. The daughter argued that the chemotherapy and medication meant the mother did not have “capacity” to sign the Thai will. The court was required to decide whether the mother had capacity when she signed the Thai will.
The daughter said that in 2018, the mother was only willing to discuss business decisions at a surface level. The mother did not want to have discussions that would cause her stress and anxiety. In 2019, the mother was unwilling to speak to other people unless they visited her home. Between 2019 and 2020, the mother was forgetful, tired and slow. The daughter said that the mother would always say that she felt weak and had problems breathing after chemotherapy. The court found that the daughter was not a good witness. She would try to argue her case when questioned, instead of providing direct answers.
The court noted that the son was a truthful witness. However, his evidence was limited regarding the mother’s capacity. The lawyer who drafted the Thai will said he had considered the mother’s capacity. The lawyer said the mother was able to do everyday chores, could communicate well and was in a good mood. The mother gave clear instructions for her new will. She did not appear confused. The court found the lawyer’s evidence to be convincing and truthful.
The court then examined the report from a doctor. The doctor had never met nor examined the mother. All of the mother’s previous medical records were not provided to the doctor. The doctor summarised the side effects of the mother’s medication. The doctor said a side effect of one medication caused delirium, confusion and a lack of clarity of thought. The court found that the medication was prescribed after the Thai will was signed. The report was speculative and based on incomplete medical evidence. The court held that the mother did not have a disorder that influenced her decisions.
The court decided the mother had a clear understanding of the Thai will. She met with the Thai lawyer and explained that she wanted to revise her will and explained her reasons for doing so. The court found the mother had good memory of her assets. She continued to participate in the restaurant business and made decisions to transfer assets before she died. The court found the mother was aware of the people who may have a claim on her estate. The judge decided that the more recent Thai will was the valid will.
