19 October 2023 Issue 5 Susan Fielding TEP

Capacity to change

Foreword: The Asia Pacific region is the focus for this issue of the STEP Journal.

In June, STEP Australia held its first National Incapacity Conference at the Gold Coast in Queensland. Delegates from all over Australia and some from further afield were in attendance. The wide range of topics under discussion included issues of legal capacity, compromised decision making, and the intersection of elder abuse and the capacity to marry. Another topic raised was the relevance today of the test for testamentary capacity as set out in Banks v Goodfellow. This is one of the issues raised by Charlie Fowler TEP and Cameron Crees in their article, where they ask if it is time to change how testamentary capacity is approached in England and Wales.

The current scope of debate around testamentary capacity and the interest in mental capacity from STEP members are comparable with the interest shown in 2010, when STEP called a meeting with the aim of forming a steering committee to establish the Mental Capacity Global Special Interest Group (SIG). Julia Abrey TEP led the resulting committee with much enthusiasm and, from that small start, the interest in mental capacity has grown.

Elsewhere, Helen Bradford-Swire examines the personal angle of digital assets and outlines how practitioners can help their clients safeguard and pass on digital memories. The importance of advising clients with regards to succession of their digital assets upon loss of capacity or death started as a special project of the Mental Capacity Global SIG. However, as the growth of assets held in digital form increased and the need for education and awareness became evident, a separate Digital Assets Global SIG was formed. As Helen reports, STEP has been at the forefront of campaigning for governments and service providers to help people understand, protect and pass on their digital memories.

However, it is not only the SIGs that are making a difference. Lisa Monaco writes of the update to Western Australian intestacy laws, which includes a sophisticated formula for reviewing statutory legacies on a regular basis. Since her article was written the statutory legacies have been reviewed and increased to keep pace with inflation. The impetus for this change came from a number of committees on which local STEP members were actively engaged.  

Sometimes it seems hard to make a difference to the law. The material in this issue of the STEP Journal shows that STEP members are indeed making such a difference, not only in the Asia Pacific region, but all around the world.


Susan Fielding TEP