How do I know if someone didn't have testamentary capacity?

Published 09 Mar 2017

If you haven't been awarded a fair proportion of a loved one's estate and are thinking of contesting a will in NSW, it's important to be aware of the many conditions that may swing a case in your favour. People often alter wills in times of distress or illness, which can lead them to exclude family members or other people deserving of their fair share.

Sometimes, these actions don't accurately reflect the relationship between the deceased and a potential beneficiary that has missed out. In these cases, the deceased may have lacked the testamentary capacity to fully understand the implications of their changes.

What is testamentary capacity?

One of the criteria for determining whether or not a will is valid, testamentary capacity refers to the mental status of the testator at the time they created a will. Essentially if they are deemed to have exhibited testamentary capacity, they are in sound mind and haven't had their decision-making ability compromised by any illness or affliction.

In these instances, people may be even more likely to succumb to outside pressure when making a will, which could lead to them being exploited for other people's gain. However, it's important to note there's no hard and fast definition for what constitutes mental capacity in NSW. Instead, it's one that is approached on a case-by-case basis and can be influenced by past judgements.

How can you tell if someone may not have possessed testamentary capacity?

Some broad signs that someone's mental state may have been compromised when they made a will include making seemingly rash decisions about who the beneficiaries are. If the testator's children or other family remembers are suddenly removed almost at random, it could be a sign they aren't acting rationally.

The Law Society of NSW urges people to assume that someone always has mental capacity. One strange decision isn't enough to accuse someone of creating an invalid will. These events need to happen within a wider context that either proves or disproves their capacity to make calculated decisions.

What can prove someone had a sound mind when they made a decision?

A recent high-profile case involving one of Australia's richest families had its decision made based on evidence of testamentary capacity. The plaintiff who was left out of the will attempted to make the argument that her father removed her from the will when he was not of sound mind.

However, the deceased's decision to remove the plaintiff from the will was backed up with clear and calculated letter to his solicitors, which the judge ruled to be evidence that his testamentary capacity was not compromised.

To find out more about what can affect a contesting wills case, get in touch with the team at Gerard Malouf and Partners.

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