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Wills

Not enough to explain

The subject of who determines capacity is a live topic. Is it medical? Is it legal? More importantly, does it make sense?

The test regarding testamentary capacity is generally well understood. The trick is to understand it. The High Court decision in Public Trust v Lawrence clearly articulates the divide between understood and understand. As noted at [53]:

The matter before the court is set out at [56] as follows:

Applied in the context of the will before the court, the following paragraphs of the decision are instructive:

While the court acknowledge that Ms Fell may have been correct when stating she had no concerns about Mr Lawrence’s capacity, as noted by Dunningham J at [66], she did not have the benefit of why Ms Fell did not have any concerns regarding testamentary capacity.

The take home message, which is not new, is capacity (testamentary or otherwise) cannot be confirmed in an information vacuum. It isn’t about credibility – its about the facts.

References:

  • Public Trust v Lawrence [2022] NZHC 558
  • Murray v Murray [2012] NZHC 545

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