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What is testamentary capacity and how does it affect will disputes?

Updating a will is a vital part of ensuring that your estate is distributed according to your wishes upon your death. In fact, lawyers often recommend regularly amending your will when life-changing events occur.

However, it is important to have testamentary capacity when writing a will. This typically means you must be of sound mind and memory when making decisions on how your assets will be divided among loved ones.

Testamentary capacity is more likely to become an issue when the individual writing the will is advancing in years, as this is when senility and dementia are most common. Other conditions, such as mental health problems and brain injuries, could also bring a person’s testamentary capacity into question.

In situations such as these, eligible people can contest the will to say that the deceased lacked testamentary capacity to make such important financial decisions.

There is also a risk of undue influence, which is when concerned parties believe the deceased was emotionally vulnerable and taken advantage of by someone who ended up benefiting from the estate.

How is testamentary capacity judged?

A person is usually judged to have testamentary capacity when they:

  • Know the purpose of a will
  • Are aware of their estate and assets
  • Understand their obligations to provide for their spouse and children
  • Do not suffer from delusions or mental illness at the time of writing the will

If there are doubts over an individual’s judgement, then a doctor’s opinion is often sought in writing. Having a medical professional in attendance during the writing of the will and being one of the two witnesses is also helpful.

Lastly, some people may consider a video recording of the will being written to help support testamentary capacity claims.

When disputing a will, it is important to remember that even if the courts agree that the deceased lacked testamentary capacity, they may still decide to uphold the document. However, an inheritance dispute could result in the latest version of the will being passed over in favour of an earlier copy.

If you want to have the best chance of successfully challenging a will – or you would like to know ways to avoid your own decisions being disputed upon your death – the best course of action is to contact a specialist lawyer.

Not only can they provide you with help and advice on the next steps, they should give you an accurate idea of your likelihood of success.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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