Why is your ‘capacity to make a Will’ so important?

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Why is your ‘capacity to make a Will’ so important?

The capacity to make a Will is known as testamentary capacity. At its most basic level, a person must be aged 18 or over in order to make a valid Will, although there are some exceptions to this, such as if a minor is married or the court orders a minor to make, revoke or alter a Will for any reason.

However questions of testamentary capacity typically involve more complex issues of the mental capacity of a person (known as a testator) to make a Will. These issues often span both legal and medical domains, in that expert psychiatric or medical evidence may be required to determine the testator’s capacity.

The classic test for testamentary capacity was laid down as far back as 1870 in the case of Banks v Goodfellow in that when disposing of their property ‘a testator shall understand the nature of the act and its effects’ free from any ‘disorder of mind’ or ‘insane delusions’. This statement still holds true today, in that a testator must be of sound mind, memory and understanding in order to make a valid Will. This means:

  • Understanding the nature and effect of a Will;
  • Understanding the nature and extent of the property to be disposed of;
  • Comprehending any claims, from potential dependents for example, which a testator ought to cater for in their Will; and
  • Ensuring a testator is not affected by delusions or undue influence which may impact on the disposal of their assets, at the time they make their Will.

Legal practitioners have a particular duty to ensure a testator’s wishes are accurately recorded, particularly where a testator’s testamentary capacity is in doubt, or where an interested party, other than the testator, provides instructions for a Will.

Generally the courts will uphold a person’s right to make a Will wherever it is legitimate to do so. Capacity to make a Will may still be upheld even in the face of old age, illness, dementia, alcoholism or depression, depending on the circumstances of the case.

The case of Banks v Goodfellow demonstrates that a testator of unsound mind may still make a legally valid Will if the delusions suffered by the testator do not actually affect the dispositions in the Will. However the Will of such a person, will warrant particular scrutiny by the court.

The onus of proving that a Will is valid usually falls to the executor, or whoever may apply to the court for a grant of probate. Where a Will is rational on its face and duly executed, in terms of being validly witnessed, there is a presumption, in the absence of any evidence to the contrary, that the testator had sufficient capacity.

However any suspicious circumstances, undue influence or fraud may challenge testamentary capacity and affect the validity of a Will. In particular where a testator is old, ill, suffers cognitive deficiency or intellectual disability, the courts will be extra vigilant in ensuring the will accurately reflects that testator’s wishes.

Unscrupulous family members may encourage a vulnerable testator to make or change a Will in their favour, or give disproportionate benefits, where that family member would not normally have a claim over the testator’s assets.

Ensuring legal capacity of the testator is essential in ensuring the validity of a Will. If a Will is deemed invalid on the grounds of testamentary incapacity, the testator may die intestate (as defined in our previous blog) and their assets distributed in accordance with the rules of intestacy, which may not align with their wishes.

At Cohen & Krass we have the legal expertise to advise on legal aspects of testamentary capacity and to draft valid wills.

For any further questions on testamentary capacity or for assistance in drafting a will tailored to your individual circumstances, please do not hesitate to call us on +61 2 9299 9920 or send us an email via the contact us page.

From the legal team at Cohen & Krass – where in-depth knowledge and extensive experience combines to give you the service and solutions you deserve. 

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