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.