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Who has capacity to make a Will?

 


Determining testamentary capacity to write a Will

For a Will to be valid, the person making it (the testator or Will-maker) must have testamentary capacity. In this blog post, we will explain the test for testamentary capacity, how we ensure that our clients have testamentary capacity, and the potential repercussions of a testator making a Will without capacity.

What does capacity mean?

Testamentary capacity is the legal threshold of cognitive ability required to be able to make or change a Will and to make all of the important decisions within that document.

As a general rule, every person over the age of 18 has capacity to make their own legal decisions, including entering into contracts, getting married and making a Will. We know, however, that certain circumstances can affect a person’s ability to make decisions, including intellectual disability, mental illness, or a degenerative disease such as Alzheimer’s.

Here, we set out the test that we apply and the additional precautions that we take where we have doubts about a client’s capacity, or where we know that a client has been diagnosed with a condition that could affect their capacity.

What is the test for judging capacity?

To determine capacity to make a Will, we often look to the English case of Banks v Goodfellow from 1870. This case sets out four requirements that a person must meet to have testamentary capacity.

1.  Understand the nature and effect of a Will

It is important that the testator knows that they are creating a legal document that will divide their assets after death. They should understand that this document cannot be changed easily and so they should not make decisions regarding the contents of the Will lightly.

2.  Understand the nature and extent of their property

Generally, the testator should know the value of their assets, to a reasonable approximation. A testator telling their solicitor that they have significantly more assets than they actually possess could be a sign that they do not have the necessary capacity to make a Will.

3.  Comprehend and appreciate who the people are who could make a claim on the estate and what obligations they may have to those people

There is a general assumption at law that testators should leave part of their estate to those to whom they owe a ‘moral duty’. Usually, testators are thought to owe a moral duty to their spouses and children, and possibly others under their care.

If a testator wants to leave one of these people out of their Will, or leave them a significantly reduced share compared to other beneficiaries, a solicitor must ensure that they understand what they are doing and take detailed records of why. If the testator doesn’t have a reason for excluding someone, it may signify that they are not aware of the repercussions of making a Will.

Making a decision that is unpopular or unusual is not in itself a sign that someone lacks capacity, however. There are many reasons why a testator may exclude someone from a Will or leave them a smaller share. They may be estranged from one of their children, for example, or feel that one child needs significantly more financial support than others. Even a decision that seems unwise to other people can be a valid decision, if the testator understands the consequences.

4.  Be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition

This language is quite archaic and should be applied in accordance with modern knowledge about various mental conditions. It is important to remember that the progress of some conditions, such as dementia, is not linear; there can be periods where an individual is lucid followed by times where they are less aware of what is happening around them.

When a solicitor has doubts about a testator’s capacity, it is best for the solicitor to meet with the testator over a period of time and on several occasions. This way, the solicitor can get a sense of what is normal for that individual and how their capacity fluctuates. This is also important to remember when a doctor assesses capacity.

How do solicitors ensure that a client has capacity?

It is important for a solicitor to make their own assessment of a client’s capacity, based on the factors above. To add an extra layer of precaution, at David Davis we will also write to the client’s regular doctor (usually GP or geriatrician) and ask them to assess the client using a checklist.

We then ask the client to make an appointment for the doctor on the same day as their legal appointment to sign the Will, so that the doctor’s assessment is contemporaneous. Consulting with the client’s regular doctor means that we have an extra person who can judge whether the client has less capacity than usual. We want to ensure as best we can that the client has capacity and that their Will is therefore legally binding.

What happens if a testator does not have capacity?

Any Wills made by a testator without capacity will not be valid.

This can cause difficulty after the testator has died, as their Executor will not be able to easily obtain Probate of the Will if the Court has doubts about the testator’s capacity. Concerned persons, such as the testator’s family, can also make a challenge to the Will if they think the testator lacked capacity.

Such a challenge can lead to a lengthy legal process to determine whether the testator actually was able to make a Will at the time. This is emotionally taxing for all involved and can be costly.

If the Court finds that the testator did not have capacity, then the Executor will not be able to distribute the estate according to the testator’s last Will. The Executor instead will need to obtain Probate of an earlier Will, if one exists, or distribute the estate according to the rules of intestacy.

Get help

If you want to make a Will, but know that there could be some doubts around your capacity due to a disease or disability, it is important that you find a solicitor that you trust.

At David Davis, we don’t take shortcuts in ensuring that a testator has capacity. Contact us today for a quote for your Will or click here to start the process of writing your Will using our online platform.

Contact David Davis Lawyers (including during COVID-19)

Phone: 03 9014 1299
Email: admin@ddavis.com.au
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