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LLB377 Mid Semester Problem Question Assignment
LLB377 - Wills and Succession Planning
5 Found helpful • 4 Pages • Essays / Projects • Year: Pre-2021
the year 2017 Distinction Mid Semester Problem Question Assignment valid will in New South Wales (NSW) requires the testator to have a mental capacity. The classic test of testimony capacity Banks v Goodfellow1 requires the testator to have a sound mind, memory and understanding. The Testator is required to understand the nature of the act and its effects, extent of the property which is being disposed of, comprehend and appreciate the claims to which is ought to give effect, and are not affected by delusions that influence the disposal of their assets at the time they are making their will.2 The basic elements of the test still apply in NSW Courts, though the interpretations of the elements have changed over time. In Kerr v Badran; Estate of Badran 3 , Windeyer J explained the differences in life during the 1800s and today, particularly where the life expectancy has increased since, causing problems with age such as dementia to be a much common issue, causing a shit over time in interpreting the elements. Nonetheless, there is no single legal definition of capacity in NSW and is instead assessed based on the case, the type of decision sought and transaction involved.4 2. WARNING SIGNS IN RELATION TO CAPACITY OF MARIO The “Guide”5 published by the NSW Law Society notes that it is not the responsibility of a solicitor to be an expert in assessing the capacity of their Client, though could carry out a ‘legal’ assessment of the capacity based on some warning
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