Making sure your loved one is mentally capable when signing their will
What does it mean to have ‘mental capacity’ when it comes to signing a will or an important legal document? This has recently become a hot topic, with new case law shining some much-needed light on the subject. It’s also something that families need to be aware of as their loved ones age.
Mental capacity, as a concept, seems straightforward and self-explanatory. Common sense would suggest that if there is even a slight question as to a will-maker’s capacity, an assessment should be carried out to ensure they fully understand the provisions in their will, as well as the possible consequences that could arise from them.
In a perfect world this might be true, but in reality this is not always the case. Increasingly families are disputing the wills of their loved ones as the provisions in the will are different from what they were led to believe. They often feel as though they have been cheated out of their inheritance when their elderly or terminally ill family member signed their will, without having the mental capacity to do so.
What is mental incapacity?
Mental incapacity can be difficult to define and detect – for families and for others who are doing business with that person. Although there is no single definition of mental incapacity in New Zealand, it is widely acknowledged that a person lacks mental capacity if they cannot understand the nature, or foresee the consequences, of their decisions, or if they are unable to communicate them.
Let’s use an example of how diminished mental capacity can impact on making a will.
Mary Seymour phones a law firm that she has never used before. She wants to make changes to her will and the firm is willing to do this for Mary. Mary explains that she is in hospital with terminal cancer so she will email her instructions; her new lawyer (Elizabeth Parr) will draw up the will and visit her in hospital to have the will signed and witnessed. The will is drafted and the following day Elizabeth visits the hospital to have Mary’s will signed. When Elizabeth arrives, Mary is in bed and, although she is in considerable physical discomfort, she is chatty and appears lucid. Mary signs the will and this is witnessed by two hospital staff. Two days later Elizabeth is told that Mary has died. A few weeks later, Elizabeth receives notice that Mary’s family is contesting her will, as they don’t believe Mary had mental capacity when it was signed.
This scenario is more common than you may think. Disputes over the distribution of an estate can not only destroy family relationships, but are also costly, time-consuming and emotionally exhausting for all involved. So, how can this be avoided?
Helping protect families from disputes
Recent New Zealand case law gives us some guidance as to how the courts want lawyers to approach the question of mental capacity to protect families from costly legal disputes.
In a 2017 High Court case, Justice Courtney found the will-maker, whose mental capacity was the main question of the proceedings, to have been mentally incapable when she signed her will. The will-maker was very unwell at the time of both giving will instructions and signing her will. Her health had deteriorated to such an extent that she was regularly taking Oxynorm, an opioid-based painkiller, for comfort measures.
After hearing evidence from multiple expert witnesses, family and close friends, the court found that there was no way that the will-maker could have understood the nature of the changes that she was making to her will, which included entirely excluding certain family members, nor would she have been able to foresee the consequences arising from these changes.
The case was appealed and the Court of Appeal agreed with the High Court, but put significant weight on the fact that the deceased’s will deviated significantly from her past wills. The three judges advised that if the provisions of the proposed will are significantly different from a past will, then the lawyer should question the will-maker on their reasoning for these changes. For example, the change referred to in this case was the unreasonable exclusion of a particular group of family members who were both previously included and who would have had a justifiable expectation to inherit.
The court pointed out that if a will-maker instructs their lawyer to make major changes to their previous wills with no apparent good reason, this should be treated with considerable caution. It may point to evidence that the will-maker did not fully understand the consequences of making those changes. In this case, the court held that the earlier will was the valid document.
Suspect mental incapacity?
Looking at our original scenario above, when Elizabeth visited Mary Seymour in hospital it was clear that Mary, in an oncology ward and surrounded by medical staff, was, in fact, terminally ill. Luckily for Mary, Elizabeth asked a doctor who was treating Mary to assess Mary’s mental capacity. Although, this meant added costs and time for Mary, having a medical certificate stating that the she had been assessed for her capacity to understand the nature of her will and the potential consequences that could arise from her will meant that her last wishes were heard and upheld.
As shown in many cases heard before the New Zealand courts, it’s much easier to test for capacity at the time of making a will than it is to prove it retrospectively, which can often be impossible. It is also extremely important that families are protected from messy estate disputes.
Keep everyone informed
Families: For families who have elderly parents who you know are considering making changes to their wills, testing for mental capacity may be something you may want to bring up with them, unpalatable and awkward as it may seem.
Will-makers: If you are becoming quite frail, your family may be concerned that you do not have the mental capacity to make and/or comprehend significant changes to your will, even though you may feel perfectly well. They may want you to undergo an assessment to ensure you fully understand the consequences of the changes you are making.
When you die, your family wants to have marvellous memories of your life and times. It would cause extra stress if your will contains some surprises about which no one has known, and that results in a family division over a challenge to your will.
How old do you have to be?
As lawyers, we’re often asked the legal age for a variety of things such as agreeing to medical treatment, making a will and so on. We thought it would be useful to pull together some of this information as a guide for the required ages in these situations.
The younger years
At the age of five, you can be enrolled in a state school, although, under a recent law change, a child can start school at the beginning of the term closest to their fifth birthday, if their school has a ‘cohort entry’ policy. Youngsters don’t actually have to start school until they’re six years old.
At just 10, you can be charged with murder or manslaughter and, at 12 years old, you can be charged with a number of other serious criminal offences.
When you’re 14 years old, you can be left at home alone. You can also babysit a child, as long as you’re capable of providing reasonable supervision and care. You can now also be prosecuted for any criminal offence.
When you turn 15, you can wave goodbye to school, but you will need approval from the Ministry of Education.
On reaching your 16th birthday, you can sit a driving test and get your learner driver licence. Generally, you can leave home without your parents’ agreement (unless there are serious concerns about your welfare). You can agree to, or refuse, medical treatment.
At 16, you can get married or enter into a civil union for which you will need your parents’ consent – even though you don’t have to live in the same house as them. Once you marry, however, your parents will no longer be your guardians.
You can leave school of your own volition at 16, and you’re also eligible to work full-time. You can legally consent to have sex, apply for an adult passport, fly a plane solo, apply for a firearms licence and you’re eligible for various state benefits. Your parents cannot change your name, unless you agree to it.
There’s more . . .
When you’re 17 years old, you can join the armed forces if you have your parents’ consent. You can apply to join the New Zealand Police, but you can’t start training at Police College until you’re 18.
In the criminal court system, after you turn 17 you will be treated as an adult and must appear in the District Court or High Court; you no longer appear in the Youth Court.
Your 18th birthday signals the end of your parents (or legal guardians) having any legal responsibility for you. You can make a will; although in some circumstances younger people can do this. You can get married or enter into a civil union without your parents’ consent. You can go off to the bank to apply for your own account, credit card and a loan. (You may have a bank account when you’re under 18 years old, but it must be in the joint name of a parent or guardian.) You can be called upon to do jury service. You may place bets at the TAB or racecourse, buy Instant Kiwi tickets, vote in national and local body elections and you may stand as a political candidate. You can legally buy alcohol, cigarettes, tobacco or fireworks and can change your name, all without needing anyone’s agreement.
That’s not everything
At the age of 19, if you’re adopted, you can place a veto that will last a decade on information about you so that your birth parents cannot contact you; this veto can later be removed or renewed.
After you turn 20, your birth parents can ask Oranga Tamariki (Ministry for Children) for information about you. If you don’t want them to do that you must apply for a veto; you need to write to the Registrar of Births, Deaths and Marriages saying that you don’t want information to be released that could identify you. In the letter, you must say if you’d like counselling about your choice.
By the time you’re 20 years old, you have the vast majority of adult rights and responsibilities. If you’re adopted, you can apply to the Registrar of Births, Deaths and Marriages to obtain a copy of your birth certificate to find out the names of your birth parents. You can apply to adopt a child who is related to you. You can gamble or work in a casino, and you may drive with a small amount of alcohol in your system.
When you are 25, you can apply to adopt a child who is not related to you, as long as that child is at least 20 years younger than you.
There are, however, a number of things you can do with no minimum age. You can buy contraceptives, own land, purchase a lotto ticket, obtain a passport, have a tattoo and join a trade union.
We hope this helps with some age-related queries, and that the answers haven’t come as too much of a shock – particularly to parents!