Why You May Be Asked to See a Doctor Before Signing a Will
It can feel a bit uncomfortable being asked to see a doctor before signing a Will.
For some people, it raises a concern that there is a question about their memory or their ability to make decisions. For others, it is family members wondering why that step is being taken at all.
In most cases, it comes down to the nature of the decisions being made, rather than any issue with the person themselves.
Why this comes up
There are situations where a Will is more likely to be questioned after someone dies.
That is usually where the Will does not follow what people might expect — for example, where a child is left out, where a partner is not receiving what they anticipated, or where the new Will is very different from an earlier one.
In New Zealand, certain family members have rights to bring claims against an estate. A surviving spouse can elect to divide relationship property under the Property (Relationships) Act 1976, and there may also be rights to claim under the Family Protection Act 1955. Children may also bring claims under the Family Protection Act.
Because of that, where a Will departs from what might usually be expected, there is a greater chance that it may be challenged.
Asking for a medical opinion in those situations is a way of recording, at the time the Will is signed, that the person understood what they were doing.
What “capacity” means
The legal test comes from Banks v Goodfellow. In practical terms, the person needs to be able to:
- understand what a Will does
- understand, in general terms, what they own
- recognise the people who might expect to benefit
- make decisions about those people without being affected by a condition that interferes with their thinking
This is not about whether a decision is fair or whether others agree with it. It is about whether the person understands the decisions they are making.
It is also assessed at a point in time — whether the person had that level of understanding when the Will was signed.
What the doctor is being asked to do
If a medical opinion is requested, the doctor is not deciding whether the Will is valid.
They are being asked to assess whether the person meets that legal test for capacity at the time of the assessment.
That usually involves a discussion with the person, and sometimes a short screening tool such as the Montreal Cognitive Assessment (MoCA). These tools look at areas like memory, attention and language, but they are only part of the overall picture.
What matters is whether the person can explain their decisions in a way that shows understanding — what a Will does, what they own in general terms, who might expect to benefit, and why they have chosen to deal with things the way they have.
Why this step can help
If a Will is later challenged, the court has to look back and decide whether the person had capacity at the time it was signed.
By that stage, the person is no longer able to explain their thinking. The court relies on the records that were created at the time.
A medical opinion can assist because it provides an independent view of capacity at that point in time. It sits alongside the lawyer’s file notes and helps show that the decisions were made with understanding.
It does not prevent a claim from being made, but it can make it easier to demonstrate that the Will reflects the person’s intentions.
A final point
Being asked to obtain a medical certificate does not mean there is a problem.
More often, it reflects that the decisions being made are more likely to be questioned later, and it is sensible to deal with that while everything is clear.
If you are unsure why the request has been made, it is reasonable to ask. The purpose is to make sure your wishes are properly recorded and can be relied on later.