The Effect of Cognitive Impairment on Testamentary Capacity A Look at Re Will of Barlow [2014] QSC 7

Will of Barlow

By Courtney Linton & Andrew Lind


What is the effect of mild to moderate cognitive impairment on testamentary capacity? The Supreme Court of Queensland has considered the issue.

The Facts

On 4 March 2008 Mrs Barlow executed a Will, replacing an earlier Will dated 5 October 2006.

In the 2006 Will, Mrs Barlow’s house was to fall into residue, in which event it was to be evenly distributed amongst five charities.

Contrarily, in the 2008 Will, Mrs Barlow gifted her house to her personal carer and “dear friend” Mr Arnold, with the residue of her estate to be gifted to the Red Cross and her local church.

The issue for the Court was whether Mrs Barlow suffered cognitive impairment at the time the 2008 Will was made, and whether this prevented Mrs Barlow from having the testamentary capacity to execute this Will.

Facts Indicative of Dementia

His Honor Justice Byrne SJA concluded that at the time the 2008 Will was executed, “Mrs Barlow did suffer from progressive dementia.” This conclusion was on the basis of a number of reports and testimonies.

In February 2007, a year prior to the making of her new Will, Mrs Barlow was reported to suffer “borderline dementia” by general practitioner Dr Middleton. At this same time, the executor of her Will and her Attorney (appointed pursuant to a enduring power of attorney), Mr Carroll, found her forgetful and lacking in capacity to make sound decisions about her welfare and assets.

At the time the Will was signed in 2008, Mrs Barlow “laboured under significant infirmities,” including limited sight and hearing, poor short and long-term memory and untimely bouts of faecal incontinence.

In December 2010, Mrs Barlow’s general practitioner Dr Kortlucke reported that “Given her age, her forgetfulness and the hallucinations it is likely that she had a dementing illness on the 04th March 2008. I don’t believe it is possible that she could have recovered her capacity temporarily to be able to give instructions for her will.”

Furthermore, in commenting upon the likelihood of Mrs Barlow possessing capacity, geriatrician Dr Berry found it likely that Mrs Barlow suffered a significant permanent degree of cognitive impairment due to a dementing illness. Such an illness was likely attributable to either Alzheimer’s or vascular dementia.

On this basis Dr Berry concluded that it was more probable than not that Mrs Barlow did not have capacity at the time the Will was formed.

Mild to Moderate Cognitive Impairment Does Not Preclude Capacity

Despite the presence of mild to moderate cognitive impairment, his Honor Justice Byrne SJA found that Mrs Barlow nevertheless possessed testamentary capacity.

Whilst a seemingly controversial decision, this was based on a number of persuasive, external factors.

Primarily, his Honour found that when using the 2006 Will as a reference tool, Mrs Barlow’s choice of gifts was unsurprising.

Notably, the gifts were so substantially similar to that of the 2006 Will that it was likely used as a template by Mrs Barlow when conveying her wishes to the Public Trustee. This is indicative of rationality and coherency on behalf of Mrs Barlow.

Moreover, despite claims that it was irrational to gift the house to her carer, it was noted that there was an absence of any other obvious claims on Mrs Barlow’s assets; her husband had predeceased her and she had no children nor close relatives.

Further, Mr Arnold played a significant role in helping Mrs Barlow maintain her independence, for which she was likely, given her unwillingness to move into a nursing home, immensely grateful.

Additionally, reducing the number of charities to be gifted was held not to be indicative of a lack of capacity. Rather, this was founded on the assumption that, with the house being gifted to Mr Arnold, the vale of her residue to be distributed was significantly lessened.

The choice of charities was also unsurprising. Mrs Barlow had been attending her local Church for many years, and had been an active participant of the Red Cross since 1969.

When assisting Mrs Barlow to apply for an Electoral Visitor vote, federal parliamentarian employee Michelle Curran found Mrs Barlow to be “rational” in her assessment, noting no signs of any mental incapacity.

Finally, the Public Trustee, who helped Mrs Barlow construct and execute the 2008 Will, entertained no concern about Mrs Barlow’s capacity and held the impression that Mrs Barlow had sufficient memory and understanding to make a will.

This was extremely significant, as having extensive experience in taking instructions for Wills, in preparing them (at the time drafting 35 Wills per week), and in supervising their execution, the will making officer had an in-depth understanding of factors that constituted a lack of capacity.

His Honour concluded at para 71-73 as follows:

71 there was no medical assessment of Mrs Barlow’s mental functioning around the time the [2008] will was made.

72 Mrs Barlow appreciated that she was making a will when she instructed Ms Curran, and she understood what that meant. There is no reason to doubt that she was aware of the nature and extent and, at least in a general way, the value of her estate. She was aware of those who may reasonably be thought to have had some claim on her bounty. Moreover, the particular gifts she chose to make, coupled with the contemporary observations of Mr Arnold, Ms Curran and Ms Arnold, reveal that she reflected rationally upon the potential claims on her benefaction.

73 It is more probable than not that Mrs Barlow had testamentary capacity when she made her 2008 will.

The court ordered a grant of probate in solemn form of the 2008 Will.

Lessons Learned

Mild to moderate cognitive impairment does not automatically preclude testamentary capacity. Contrarily, extenuating factors must be considered in the ultimate determination of capacity.

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