Dementia, testamentary capacity and contesting wills

Published 11 Feb 2014

Did you know that dementia can be grounds for contesting a will?

In order to create a valid will, states the New South Wales Trustee and Guardian, you must comply with the following criteria:

– You need to be at least 18 years old (unless you are married).

– You must sign the will and make sure it has been witnessed by at least two people.

– The will should be written (whether typed or by hand).

– You need to have “testamentary capacity”.

What is testamentary capacity and how does it relate to contesting wills?

To put it simply, testamentary capacity is a person’s ability – both legally and mentally – to either create or alter a will.

Though what constitutes testamentary capacity differs from case to case, the New South Wales Trustee and Guardian defines it as:

– Understanding the legal consequences of your will.

– Being fully aware of the “extent of your assets”.

– Knowing who might ordinarily be expected to benefit from or receive a portion of your estate in the event of your death.

– “Not being prevented by reason of mental illness or mental disease from reaching rational decisions as to who is to benefit from your will”.

If it’s discovered a person who created a will did not meet the above criteria, that person’s spouse, children, de facto partner, ex-spouse and any other dependents who feel they have not been sufficiently provided for may get in touch with contesting wills lawyers and take the matter to court.

Where does dementia fit in?

As a progressive, degenerative disease that can affect a person’s “thinking, behaviour and ability to perform everyday tasks”, dementia is an example of the kind or mental illness or mental disease mentioned above that can stop a person from having testamentary capacity.

It is also one of the most widespread conditions in New South Wales at the moment. According to a survey conducted by Alzheimer’s Australia New South Wales, there are approximately 112,000 people currently living with dementia in the state. This is expected to grow by a significant amount as we head toward the end of the decade, reaching 132,000 by 2020.

If you believe you have not been treated fairly in the will of a relation or provider and think you could dispute their will on the grounds of testamentary capacity, you may want to get in touch with a contesting wills lawyer today to figure out your next step.

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