What defines the capacity to make a will?

Published 04 Nov 2015

Author: David Cossalter

Most people begin their estate planning in their 30s and 40s. As their family is growing and their personal situation is more stable, this is the ideal time to consider what happens in the event of their death.

While this is the standard time to draft a will, a percentage of Australians leave this task until it is too late. The older people get and the more their health deteriorates, the greater the chance of them losing the capacity to make a will.

If an individual is at risk of losing testamentary capacity, there is the possibility that anomalies will arise when the estate is read. As such, if you believe that this is the case in the estate of a family member or close friend, you have the chance to contest the will. However, before you undertake this option, it's recommended to talk to a contesting wills lawyer regarding your options and chance of success.

When challenging a will on the grounds of testamentary capacity, it is important to understand what being able to make a will actually means. This concept is much wider the will itself and should form the crux of your argument in court under NSW legislation.

1) Understanding what a will involves
Will-makers need to have the capacity to understand the concept of a will and what it is used for. If someone didn't have the ability to know this information, this could be grounds to challenge its contents.

2) Ability to make decisions
Decision-making is a key element in the creation of a will. A person must have the ability to convey a thought process that leads them to a particular decision when determining how their assets will be distributed. These moral choices should be the basis for every decision on the will.
However, someone without the capacity to make a will may have had no ability to weigh up considerations. Again, this can be something to consider if you choose to contest.

3) Appreciate the value of their estate
Estates come in all sizes, but for someone to have the capacity to make the will in the first place, they must have had the ability to realise its full value.

This can be a difficult point to challenge, but is most obvious if a particular person has received considerably less in a will than others. Did the person who made the will understand how one bequest compared to the total value of the estate?

If you believe that someone didn't have the capacity to make a will and you wish to challenge this document, get in contact with our expert team today.

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