Authors: Kimberly Lawrence, Kevin Lenahan
Published: 2 November 2022
Pages: 28

Introduction

As the population ages testamentary capacity and undue influence increasingly arise as concerns for beneficiaries of estates, often both at the same time.

When dealing with these issues, both in the early stages of a dispute and when litigating, there are a number of practical steps to consider including:

a) Understanding the law relating to testamentary capacity and undue influence,
explaining this to your clients, and dealing with common misconceptions;
b) Obtaining medical records and relevant files to assess the position;
c) Drafting pleadings, and in relation to undue influence considering your obligations
under R 13.8.1;
d) Briefing expert witnesses;
e) The executor’s role in capacity and influence cases; and
f) Costs.

This paper will consider all of these issues and how to address them, including the costs and risks involved at all stages.

Content outline

• Testamentary capacity - the law
• Undue influence - the law
• Obtaining medical records and relevant files
• Briefing expert witnesses
• Drafting pleadings
• The executors role in capacity and influence cases
• Costs