What does it mean for a person to have testamentary capacity?

Published 21 Jun 2016

There are a number of reasons why people might contest a will in NSW. In some instances, they may feel as though they have been unjustly left out of the document or have received a provision that does not accurately represent their connection with the deceased.

In other cases, the creation of the document and some of the conditions it details may seem suspicious or out of line with how a person usually behaved. This can indicate that there has been an external influence of some sort, which could render the will invalid if it is contested in a court of law.

While sometimes this may be the result of external pressure from someone looking to profit off the will, often people simply lack the testamentary capacity to produce one of these documents to the letter of the law.

The four elements of testamentary capacity

A recent case that came before the courts in NSW revealed that there are four main conditions a person must satisfy if they are deemed to have testamentary capacity.

According to a Judge's ruling in the Banks vs. Goodfellow case, a person:

"Shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties."

With this precedent set, people looking to contest a will can look out for signs that the will creator is not adhering to these conditions.

How to judge capacity

Despite the guidelines put in place by the above judgement, the Law Society of NSW states there a further conditions by which people should judge someone's testamentary capacity. The institution also pointed out that, while there are guiding conditions, there is no real set legal definition of capacity. Instead, it is described as a fluid trait that needs to be judged on a case-by-case basis.

On top of this, the Law Society was also quick to note that people should not make assumptions about a person's testamentary capacity, especially due to their age or the way they communicate.

To find out more about how a person's capacity can affect the process of contesting a will, contact the team at Gerard Malouf & Partners.

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