Determining testamentary capacity

Testamentary Capacity

Determining testamentary capacity

In order for a will to be valid, the testator (the person making the will) must have the capacity to make the will. Without testamentary capacity, a testator could be vulnerable to exploitation and may not have their legal interests sufficiently protected.

While it is generally presumed that all adults have legal capacity, there may be some concern if the person making the will is intellectually disabled, has acquired a brain injury, is of advanced years, or has some other issue relating to their mental abilities.

If someone has cause to believe the testator did not have capacity to write their will, the will may be challenged in court. This may happen in situations where a testator has written a new will while very ill shortly before death, or perhaps has been removed from loved-ones or relied upon particular people.

There are four determinants that can indicate whether the required legal capacity exists:

1 The testator should understand that they are writing a will

It should be shown that the testator is aware of the nature and effect of a will, and that they are aware that they are writing a will (as opposed to simply writing a letter or a shopping list for example).

2 The testator should understand what their property is

When the testator is preparing their will, they should understand the nature and extent of their property. That is, they should have a good understanding of what their assets are without necessarily being aware of the value of every item of property. For example, if the testator had a manager of their share or property portfolios then the testator is not necessarily expected to understand the full extent of the value of those assets.

3 The testator should understand what claims are expected to be made on their property

The testator is likely to have family members and loved ones who have a reasonable expectation that the testator’s property will be passed on to them in the will. The testator should have the ability to comprehend and appreciate these claims. However, while this ability is required it is not necessary for the testator to satisfy these claims. The testator has the freedom to make any decision regarding their estate without it necessarily indicating a lack of capacity.

4 The testator should not suffer from a condition that prevents them from making a rational decision

The testator should not be suffering from a disorder of the mind (for example, mental illness or dementia) that makes it difficult for them to be aware of what is contained in their will. Merely having the illness does not mean the testator lacks capacity. The illness should be such that it impairs the testator’s insight, judgment and ability to make decisions. Some difficulties may arise in proving lack of capacity where mental illnesses such as dementia may give the testator periods of lucid thought which give them intervals where they have the required legal capacity to make a will.

If just one of the above elements was not present when a testator was preparing their will, it may be possible for the will to be set aside.

If you have any questions arising from this post, please contact one of our expert estate planning lawyers at Certus Legal Group on 07 3106 3016 or contact us using the form on this page.

This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.