For a Will to be valid there is a fundamental requirement that the Will maker is in the right state of mind. This is legally referred to as having ‘testamentary capacity’. Willmakers and their loved ones should understand the issues surrounding capacity to avoid disputes and ensure that assets will be distributed according to a person’s wishes.

It is presumed that most people over the age of 18 years have mental capacity to make a Will, unless they have a mental disability that impacts on decision making power, for example an intellectual disability, or diseases such as dementia or Alzheimer’s.

To establish testamentary capacity, the Will maker must meet the following four requirements:

1.     The nature and effects of a Will – The Will maker must know that they are stating their wishing in a document that distributes their assets after death.

2.     Their property – The Will maker must be aware of all their assets and their value.

3.     Beneficiaries – The Will maker is aware of the people who may have a claim on their Estate, including spouse, children and other dependents. Further, they must recognise the risk of excluding a person who could challenge the Will.

4.     No delusion – The Will maker has no insane delusion that is influencing their instructions in the Will, and they are not affected by a mental incapacity at the time they provide their instructions or at the time of signing the will.

Lawyers have a duty to confirm a Will maker meets the above requirements at the time of drafting and signing their Will. If there is doubt, a doctor would be required to formally assess testamentary capacity. It is worth noting that the legal threshold for incapacity is quite high, and cognitive impairment, forgetfulness or disorientation on its own is not enough to determine incapacity, rather an assessment of reasoning and decision-making ability would be undertaken. The opinion of the Will maker’s regular doctor who has knowledge of their background would be more highly regarded than a doctor who is unfamiliar with the Will maker’s history.

If it is determined that there is no capacity, then a person is not able to make a Will, instead their Estate will be distributed according to intestacy rules, a court-order, or, a prior Will will be enforced.

Advice for Will Makers
Firstly, consider the potential for your Will to be disputed. If doubt over mental capacity could be used after your death to challenge your Will, take steps at the time of drafting to ensure that capacity is established. This is particularly important if a new Will involves a significant change in your wishes from prior Wills, or if it is contrary to the expectations of your beneficiaries.

Secondly, engage a lawyer to draft your Will, as lawyers are trained to recognise signs of diminished capacity and will not take instructions from a client if they have doubts on their decision-making ability. A professionally drafted Will is more likely to be upheld.

Lastly, if there is any doubt about capacity due to age, disease or disability, a complete mental evaluation should be undertaken at the time of preparing a Will.

For advice on Wills and estate planning specific to your circumstances please contact me, or Ranu Jas on (02) 9908 9888.