Enduring Guardian Lawyers NSW

Wills & Testamentary Capacity

When making a Will it is imperative the Willmaker has testamentary capacity to ensure the Will is valid. This article will discuss the test used to determine testamentary capacity when making a Will.

The test to determine testamentary capacity is a long-standing one which is outlined in the case of Banks v Goodfellow (1869-70 LR5QB549).

When determining if a Willmaker has testamentary capacity it is necessary for the Lawyer to be satisfied of the following:

  1. That the Willmaker understands the nature of the act, i.e. they are making a Will and what that means, and its effect.
  2. That the Willmaker understands the extent of the “property” they are disposing of in the Will.
  3. That the Willmaker is able to comprehend and appreciate the claims to which they ought to give effect i.e. they have an understanding of the people for whom they ought reasonably make some provision for in their Will.
  4. That there is no disorder of the mind which would affect the dispositions in the Will.

When applying this test to a potential Willmaker, if the Lawyer is not satisfied the Willmaker has testamentary capacity or is uncertain, then it is necessary to seek further information from the Willmaker’s doctor who may be a General Practitioner or, in many cases, a Geriatrician. This report is necessary to protect the Willmaker’s interests and to ensure a valid legal document is prepared which is likely to withstand any challenges as to validity and also to satisfy the Lawyer the Willmaker has the testamentary capacity to understand the significance and the effect of making and signing a Will.

The best way to avoid any issues which may arise regarding testamentary capacity is to have a valid Will prepared as soon as possible, while there are no capacity issues. This will avoid a lot of heartache for loved ones when you pass away, which would result if a challenge was made as to the validity of your Will due to testamentary capacity issues.

It does not matter how young or old you are, everyone should have a Will, as we do not know what tomorrow holds. If, for example, you had an accident or had a stroke and became mentally incapacitated, you may no longer have the testamentary capacity to make a Will and therefore you loose the ability to state how you wish your assets to be distributed upon your death.

The next article relevant to this topic is:

How can a Willmaker protect their wishes if their capacity is in question?

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