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Where There’s A Will, There’s A Way … Dispute Over Testamentary Capacity

20 Oct 2016

Julian Walter 110x137

by Dr Julian Walter

Male doctor speaks encouragingly to older man

A GP may hold the key to a legal dispute over a $12 million dollar will. An elderly patient originally left her estate to the Cancer Council, but later changed her will. Whether she had sufficient testamentary capacity to make such a decision is now in the hands of the Victorian Supreme Court.

Importance of proper capacity assessment
This case is a good reminder of the unforeseen consequences that can arise when a doctor provides formal assessment of a patient’s capacity (particularly testamentary capacity), especially where large amounts of money are involved. What might have been a brief assessment can morph into a lengthy stint as a court witness in somebody else’s dispute.

Both prospective and retrospective assessment of capacity can have serious ramifications for patients, doctors and third parties. Ensuring you understand the limits of what you are being asked to provide is essential. So is knowing when to seek advice.

For those of us who don’t perform such examinations regularly and whose skills might be rusty, the following articles on capacity assessment and testamentary capacity assessment are a useful refresher.  

Access to a deceased patient’s records
The case is also a good example of the complexities involved in requests for access to a deceased patient’s records.

This blog contains general information only. We recommend you contact your medical defence organisation or insurer when you require specific advice in relation to medico-legal matters.