Mental capacity must be a primary consideration when succession planning takes place

I found a recent story in an online publication from Australia that shows the role mental capacity can play in an estate dispute. The story is about the estate of John Roche a millionaire property developer from Australia. His company is apparently worth more than $250 million. The dispute involves three sisters who are battling over Mr. Roche’s estate. One of the sisters, Shauna Roche, claims that Mr. Roche lacked testamentary capacity when he executed a will in 2006 essentially cutting her out of the estate. His long-term partner Raelene Harris claims that she was not aware that Mr. Roche had early dementia until months before his death. Ms. Harris has asserted that Mr. Roche had mental capacity until his death in 2010. She also claims that she had no knowledge that he met with doctors between 2003 and 2009 to treat early symptoms of dementia.

These claims are disputed by another sister, Fiona Roche, who claims that Mr. Roche’s behaviour had changed significantly as early as 2004, which is almost two years before the 2006 will in question. There are also questions as to how Ms. Harris could have not known about the appointments with doctors between 2003 and 2009 given the nature of her relationship with Mr. Roche.

None of the allegations have been proven, and the matter is currently before the Courts.

This story is a reminder of how important it is to address mental capacity issues when preparing or modifying an estate plan. If there are questions about the testator’s mental capacity¬†(known as testamentary capacity)¬†at the time a will is modified, it is almost certain that the will is going to be challenged at some point in the future. Whenever a will is being modified, it is important to consult with an estate lawyer to ensure the changes are done properly and have the lawyer assess and make notes concerning testamentary capacity. Failure to do so may result in estate litigation and significant delay and legal costs. If a person is modifying a will at a later stage in life, it may be prudent to obtain a medical opinion to confirm sufficient mental capacity. That way the testator’s last wishes are more likely to be followed even if a disgruntled beneficiary later tries to challenge the will due to a lack of mental capacity. Whatever the case may be, it is important to consult an estate lawyer when significant changes are made to a will.

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