Do you have a valid Will? What is Testamentary Capacity?

Testamentary Capacity refers to whether a person has the capacity to make a valid Will. Under normal circumstances, most people are able to make a Will leaving their property and possessions to whomever they please. However, if a personal lacks the capacity to make decisions about their Will they are said to lack testamentary capacity.
There are many different reasons why the validity of a Will might be challenged and one reason is a person’s capacity to make a valid Will. If a Court decides that the person who is making the Will (known as the testator) did not have the mental capacity to make a legally binding Will, that Will may be set aside. If the Will is set aside then the next earlier Will becomes the valid Will of the Testator. If there is no other Will the testator is said to die intestate and a statutory regime applies as to how the testator’s estate is to be divided.
In deciding whether a testator has testamentary capacity the following test is applied:
1. Does the testator understand what he or she is signing? That is, does the testator understand that a Will is a document directing how his or her possessions are to be distributed?
2. Does the testator know what property he or she owns?
3. Does the testator understand the potential claims that can be made? In other words, is the testator aware of close family members that ordinarily should be provided for under the Will?
4. In relation to potential claims, is the testator able to weigh up these claims of various family members?
5. In weighing up the competing claims, can the testator give proper consideration without being influenced by some disorder of the mind?
It is becoming more common for people suffering from dementia (which sometime arises with age) to seek to make a new Will. It is not necessarily the case that because a person has dementia they lack testamentary capacity. Each case needs to be assessed on its own merits.
If you have a family member who wants to make a Will but you are concerned about their capacity to make a Will you should seek legal advice.
Peninsula Solicitors ..…Criminal Law..…Family Law…..Conveyancing…..Financial Services..…Estate Planning…..Central Coast Legal Services