Making a Will if Capacity is in Question
It is well known that a Will is a legal document which sets out how a person wants their assets to be distributed once they die.
If you are over the age of 18, you can make a Will - provided you have testamentary capacity.
So what is testamentary capacity?
In general terms, a person will have the necessary capacity to make a Will if they:
• understand what it means to make a Will;
• know of the nature, extent and value of property they are disposing of;
• understand who may have a claim against their estate and their moral obligations to those people; and
• are not suffering from a mental disorder which influences the disposal of their assets.
If all these elements are met, then the Will Maker will be found to have will-making capacity. This is called “testamentary capacity”.
How can your lawyer help?
If you are worried because you know someone who wants to make a Will and you consider they may not have capacity, then it is prudent to encourage them to consult a lawyer who is experienced in Will making and to do this as soon as possible.
In the initial consultation with the lawyer, it is important to ensure the lawyer is aware of the potential difficulty and in turn, the lawyer will ask various questions to satisfy themselves that the Will Maker has testamentary capacity.
While it is not the role of a lawyer to be an “expert” in assessing the capacity of their client, the Courts recently reaffirmed the significant weight that is given to a lawyer’s assessment of a Will Maker’s capacity (see the NSW Court of Appeal case of Drivas v Jakopovic  NSWCA 218).
Case law in Australia demonstrates that the assessment of testamentary capacity requires an interdisciplinary approach which utilises the skills of legal and medical professionals.
In the circumstances, if there is a question about a Will Maker’s testamentary capacity, then a lawyer may recommend that an opinion, preferably in writing, be obtained from the Will Maker’s treating medical practitioner, or in some cases, a geriatrician, advising whether the medical practitioner considers that the Will Maker has testamentary capacity.
Could the Will be challenged?
Yes, a Will can be challenged on the grounds that the Will Maker did not have sufficient capacity when signing the Will. This arises most frequently where the Will Maker is seriously ill, on certain medications or suffering from dementia.
It may be difficult to set aside a Will on grounds that the Will Maker lacked testamentary capacity if the Will is prepared by a competent lawyer who took appropriate instructions from the Will Maker and was satisfied the Will Maker had the requisite testamentary capacity to make a Will.
If you or someone you know would like to challenge a Will based on the grounds that the Will Maker did not have capacity or if you would like to oppose someone’s challenge that the Will Maker did not have capacity, it is prudent to seek the advice of an Estate Litigation lawyer.
If this is relevant to you or your family then please call us on 61 2 9212 1099 or email email@example.com.