CAPACITY AND UNDUE INFLUENCE IN WILLS AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: WHICH HUMAN RIGHT?
CAPACITY AND UNDUE INFLUENCE IN WILLS AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: WHICH HUMAN RIGHT?

Summary/Abstract: This article considers capacity and undue influence in the Anglo-Australian law of wills and how they might be impacted by Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. The article compares the common law view of capacity, which is transactional but either exists or doesn’t exist with the view taken by Article 12 which asks States to protect capacity by supporting decision- making. Undue influence is only pleaded where capacity exists, but it is notoriously difficult to prove and it has been argued that it should be made easier, in part by reference to Article 12. In this article I use the prevalence of elder abuse to illustrate the problems that may be created by using supported decision-making. I argue that supported decision-making is a naïve approach to capacity in view of the level of inheritance impatience and financial elder abuse in existence, and that those who seek to lower the bar for undue influence may be mischaracterizing the relevant human rights and causing rather than alleviating harm. I argue that the relevant human right is not the right not to be unduly influenced, but the right to exercise testamentary capacity. I then argue that the way to protect this right is not by lowering the bar, but by requiring lawyers to take the necessary steps while making wills and other instruments such as enduring powers of attorney or guardianship.

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