Overview Of The Queensland Handbook For Practitioners On Testamentary Capacity

Currently, different sources highlight some ways solicitors and legal practitioners can determine if a testator has testamentary capacity. One of these sources is the Queensland Handbook for Practitioners on Legal Capacity. This is a practical guide that legal practitioners can use, and it sets out how to test for capacity and what to do if there are still doubts as to a testator’s capacity. The steps it says to consider when testing for testamentary capacity is to identify the testator and identify what decision they are trying to make and the best way to consider the testamentary capacity for that decision. The other steps are to determine if there is any reason to consider the testamentary capacity and determine if there is a formal substitute

The Succession Act does highlight, however, what the courts can do if a testator is found to not have testamentary capacity. Sections 21-28 mention that if a testator does not have testamentary capacity, then the courts can either make, alter, or revoke a will for a testator. Having this procedure in place is helpful as it can be difficult to know what should be done when it is discovered that a testator does not have testamentary capacity, but still wants to draft a will or plan their estate. On the contrary to this, it is also difficult to know whether this route can be taken, if there are no procedures in place for testamentary capacity. This is where issues can begin to arise. To determine that these sections in the Succession Act apply, it needs to be shown that either the testator is a minor, or they do not have testamentary capacity. Having procedures in place that outline how testamentary capacity is to be determined, can assist solicitors in determining whether these sections can be used or not. Not only this, but it assists solicitors in ensuring they follow rule 8 of the Australian Solicitors Conduct Rules which is to follow a client’s ‘lawful, proper and competent instructions.’ Having procedures in place instead of guidelines can not only assist the solicitors but also the testators in ensuring their wishes are followed