Lessons
learnt from Konui v Tasi & Anor [2015] QSC 074
On a daily basis, hundreds of lawyers
around the State are instructed by clients to prepare new Wills. When obtaining instructions and witnessing
these testamentary documents, lawyers are under a strict duty to ensure that in
their mind the client has "capacity".
That is, that the individual has the requisite understanding of the
nature and effect of entering into the document.
It is not uncommon for solicitors acting
for a client who has health conditions to seek medical opinion regarding the
client's testamentary capacity.
Obtaining a medical report is important evidence in the event the Court
is asked to determine whether the client had the requisite capacity when
signing a Will or Codicil.
In the recent Supreme Court case of Konui v Tasi & Anor [2015] QSC 074 the
Court considered a report given by the Testator's treating doctor in
determining whether the deceased had capacity two days prior to death when an
informal Will was signed.
Where a valid formal Will exists, there is
a presumption that the Testator had testamentary capacity. Therefore the onus
is on the party attempting to prove that the Testator did not have the capacity
to sign the Will. Justice Boddice in the
Konui case made an important
distinction to this presumption when His Honour at 43 said:
"The onus of proving testamentary capacity
where there is an informal Will lies on the party seeking to convince the court
the deceased intended the informal document to constitute his or her Will"
This essentially reverses the usual
presumption of testamentary capacity and makes it critical for the party making
the application for the validity of the informal Will to provide the Court with
the necessary evidence, such as a medical report from the presiding doctor.
The doctor in Konui formed the professional opinion that the deceased did have
capacity on the day of signing the purported Will. However, it became clear through the course
of the trial that that the doctor provided the opinion without the knowledge
that the deceased had access to a patient controlled opioid for pain
relief.
The Court found it inconceivable that the
deceased had not accessed the drug, which in turn could have caused the
deceased to become drowsy and adversely affect short term memory.
Although the doctor maintained that the
deceased was lucid throughout the day of signing the purported testamentary
document, the Court did not accept the doctor's opinion and ultimately found
that the deceased did not have the required capacity when signing the informal
Will. This meant that the Will was not
valid and the Testator's wishes expressed in that document would not be
followed.
Whilst there was additional evidence that
the Court considered when reaching this decision, it is interesting to consider
whether the Court would have found differently had the doctor provided the
report after properly considering the deceased's access to the analgesia.
The lesson learnt from the Konui case is to ensure a doctor has
properly considered all medical aspects of the client before making their
assessment and providing a capacity report.
This will greatly assist upholding the last wishes of a client should
the matter be decided by the Court.
Do you need your Will reviewed or updated? For a free, no obligation, review of your current succession plan, please contact our Succession Law team.
Do you have concerns about the capacity of an individual when they signed a Will? For a free, no obligation meeting to discuss further, please contact our Estate Litigation team.
Richard Thompson, Lawyer, is part of
Anderssen Lawyers' Succession Law and Estate Litigation teams. Richard can be
contacted on (07) 3234 3113 or richard@anderssens.com.au.
Posted by: Kylie Wilson
