testamentary capacity; Victoria; testator; assets; estate

Wills 101 – Can I sign a Will: What is testamentary capacity and what does it mean for you?

In order to legally execute a valid Will, the person making the Will must be determined have testamentary capacity and be legally capable of doing so. ‘Legal capacity’ is not bound by one uniform meaning in Australian law.  In some contexts such as marriage or voting, a person needs to demonstrate that they understand the nature and significance of the transaction or activity.

In other circumstances in certain areas of the law such as wills, the standard is that the relevant person must be of “sound mind, memory and understanding”.  In this context your capacity to sign a Will is known as ‘testamentary capacity’. Contrary to popular opinion, whether or not someone has capacity is a legal test, not a medical one, although lawyers will frequently require clients to have a medical evaluation if there is a question of the client’s capacity.

Testamentary Capacity

The test that forms the foundation for determining testamentary capacity in Victoria was established in the very old British case of Banks v Goodfellow (1870).  The law has evolved since then to include a more nuanced assessment of the Will maker to facilitate deal with more complex capacity matters.  The basic test requires that the person making the Will satisfies the following criteria:

  1. The client understands the purpose and effect of a Will.

    It is vital that the person is aware that a Will is a legal document that will distribute their assets after their passing.  They should understand that the decisions outlined in the document are critical and will not be easily challenged and therefore should be made with a sufficient consideration.

  2. The client has a general understanding of the value of their estate.

    Whilst it is not necessary to have a meticulous knowledge of their assets, a reasonable estimate of the general proportions to be distributed should be able to be given by the testator.

  3. The client can comprehend who may have legal or other claim on their estate.

    There is a general assumption that there is a moral duty  by the Will maker to their  spouses and children.  Whilst it is not a legal requirement to include such parties as beneficiaries, the testator must be able to comprehend the consequences of excluding anyone who may feel ‘owed’ such a moral obligation.  Where the testator intends to leave out a potential beneficiary, the lawyer will take down detailed records of the exclusion and the reasons for the decision. These reasons may be included in the Will itself if there is a possibility of a challenge to the Will.

  4. The client, at the time of signing, was not suffering from a mind disorder.

    It is important to satisfactorily confirm that the testator’s capacity was not affected by a medical condition (i.e. dementia, other causes of memory loss, psychiatric or personality disorders or ‘other diseases of the mind’) which compromise their ability to make rational decisions about their estate at the time that they signed their will.

Can capacity be challenged?

Whilst in theory, a will should be an air-tight final say regarding a person’s final wishes, it is not unheard of for families to challenge a Will where there are capacity concerns for the testator.  If there are doubts about the testator’s capacity at the time of signing the Will, in Victoria, any person can lodge a probate caveat under section 58 of the Administrative and Probate Act 1958.  A caveat will prevent the making of a grant of probate, effectively freezing the assets until an outcome has been reached regarding the challenging of a Will by any person with legal standing to do so.

Have you made your will?

Glaister Legal is well-versed in writing wills for even the most complex circumstances and can help where there are possible issues regarding a person’s testamentary capacity.  Got questions?  Contact our office on 03 9052 5101 for a no obligation chat or to get started on your will today.

VCAT; matter; fees; Victoria

Taking your matter to VCAT? 5 things you’ll want to know:

VCAT; matter; fees; Victoria

So you have a dispute with a neighbour; a supplier or a co-owner of a property and negotiating with them directly has reached a stand still. No one wants to waste their time or effort on going to Court, but what are the options available? Depending on the type of case, it may be possible to make an application to VCAT to resolve your issue more quickly and more cost effectively than going to Court. But which avenue is more appropriate?

Here are a list of 5 things that will help you make your decision:

1. What is VCAT?

The Victorian Civil and Administrative Tribunal is an authoritative body that aims to provide affordable and timely access to justice for Victorians.  It’s widely considered to be a less formal process that can be used for certain types of legal matters in Victoria. It can also potentially be the route taken before attempting to commence court proceedings, with the objective of being the cheaper and faster way of resolving civil and administrative legal cases.  Whilst you’ll typically be able to represent yourself at VCAT in certain matters, legal advice is always recommended, depending on your case.

2. What costs are involved?

You should be aware that VCAT expects each party to pay their own costs (including legal costs) unless there is a specific reason why it would be unfair to either party. The costs associated with filing an application with VCAT are significantly lower than filing in the Victorian Magistrate’s, County or Supreme Courts.  Amounts vary, and standard fees can be as little as $66 for an individual in a residential tenancy claim or in some other small claims of up to $3000.  For claims of $5,000,001 and over, application fees can climb to $1693.  Additional fees for things such as file inspection or issuing a summons to a witness also apply, but you can find more information about that by clicking here

3. How long will it take to resolve my matter?

The time it takes to reach an outcome through VCAT varies depending on the type of case you’re bringing.  Some simple residential tenancy disputes may be resolved in under four weeks whilst other more complex matters may require multiple days of hearings and the decision may be pushed back for months or even years.  Although a main objective of VCAT is to resolve matters in a more timely manner than would otherwise occur, as with most things in the world of 2020/2021, the COVID-19 pandemic has thrown a very heavy spanner into the works.  There is currently a backlog of rental bond and compensation cases, with an estimated wait of several months.  Upon filing an application, VCAT will provide you with an approximate wait time.

4. What does the average process look like?

Your case may vary from the standard procedure, but overall, the following is a good guide:

  • Submit application and pay fees 
  • VCAT determine if they have legal authority to assist in your matter 
  • You are assigned a reference number
  • VCAT send all parties a notice with next instructions
  • You prepare your documents and evidence and share with all other parties 
  • You and your representative attend a hearing/mediation as per the notice instructions 
  • An outcome is determined and delivered.

5. Can I dispute the outcome determined by VCAT?

If you believe that the VCAT member made an error in applying the law to your case then you can, within 28 days of the original order, begin an appeal process.  This is a far more complex procedure than going to VCAT and we recommend that you seek legal advice and/or representation should you choose to go down this path.

Glaister Legal is experienced in navigating a vast array of VCAT matters.  We understand that any legal process, even at the VCAT level, can seem daunting.  Contact us today to see how we can help achieve a favourable, timely and cost-wise outcome for you.