A Will is an important legal document that sets out how a person’s assets should be distributed after their death. However, for a Will to be legally valid, the person making it must have the required testamentary capacity.
Testamentary capacity refers to a person’s ability to understand what a Will is, what assets they own, who may have a claim on their estate, and the consequences of the decisions they make when preparing their Will.
Being elderly, unwell or having a condition such as dementia does not automatically prevent someone from making a Will. The key question is whether the person understands the nature and effect of the Will at the time it is prepared and signed.
Where there are concerns about a person’s capacity, additional steps may be needed to help reduce the risk of the Will being challenged in the future.
What Is Testamentary Capacity?
A person generally has testamentary capacity if they can:
- Understand that they are making a Will and the purpose of that document;
- Understand the type and value of the assets they are leaving behind;
- Understand the people who may have a legitimate claim to their estate; and
- Make decisions about how their assets should be distributed without being affected by delusions or an impairment of their understanding.
These principles are based on the legal test established in Banks v Goodfellow, which remains the leading authority on testamentary capacity in Australia.
Can Someone Make a Will If They Have Dementia or Memory Problems?
Yes. A diagnosis of dementia or memory loss does not automatically mean a person cannot make a Will.
The important issue is whether the person understands:
- That they are making a Will;
- The assets they own;
- The people who may expect to benefit from their estate; and
- The decisions they are making and their potential consequences.
However, if there are concerns about a person’s ability to understand these matters, it is important to obtain legal advice as soon as possible. Appropriate steps can then be taken to ensure the Will accurately reflects the person’s wishes and is less likely to be challenged.
Who Determines Whether Someone Has Capacity to Make a Will?
A lawyer is not a medical expert and does not diagnose medical conditions. However, an experienced wills and estates lawyer can assess whether there are any concerns about testamentary capacity and recommend appropriate steps.
If capacity is likely to be questioned, the lawyer may recommend obtaining medical evidence from the person’s treating doctor or another qualified medical professional.
A written medical opinion confirming that the person has the required capacity can provide valuable evidence if the Will is challenged in the future.
When Should Medical Evidence Be Obtained?
Medical evidence may be particularly important where there is a risk that someone may challenge the Will after the person’s death.
This may include situations where the Will maker:
- Has dementia or memory loss;
- Has been diagnosed with a cognitive condition;
- Is seriously unwell;
- Is taking medication that may affect their decision-making ability; or
- Has family members who may dispute the terms of the Will.
Ideally, any medical assessment should occur close to the time the Will is prepared. This helps create evidence that the person had the necessary capacity when they provided instructions and signed the Will.
Can a Will Be Challenged Due to Lack of Capacity?
Yes. A Will may be challenged if someone believes the person making the Will did not have the required testamentary capacity at the time it was signed.
Capacity challenges often arise where a person was:
- Suffering from dementia or cognitive decline;
- Seriously ill;
- Affected by medication or another condition that impacted their understanding; or
- Vulnerable to pressure or influence from another person.
A carefully prepared Will, supported by clear instructions, appropriate legal advice and medical evidence where necessary, can help reduce the risk of a successful challenge.
How Can a Lawyer Help With Testamentary Capacity Issues?
If there are concerns about whether someone has the capacity to make a Will, obtaining legal advice early is important.
A lawyer can help by:
- Identifying potential concerns about testamentary capacity;
- Ensuring the Will preparation process is handled carefully;
- Advising whether medical evidence should be obtained;
- Making sure the person’s wishes are clearly documented; and
- Helping reduce the risk of future disputes.
Where capacity may be an issue, careful planning is essential. This may involve arranging a medical assessment and preparing the Will soon after evidence has been obtained.
Preparing a Will When Capacity Is a Concern
If you are concerned that a family member may no longer have capacity to make a Will, it is important to seek advice promptly.
Waiting too long may create difficulties if the person’s capacity declines further. A lawyer can help determine the best approach and ensure the person’s wishes are properly recorded while they still have the ability to make decisions.
Get Advice About Making or Updating a Will
Preparing a Will is one of the most important steps you can take to protect your wishes and provide certainty for your loved ones.
At Somerville Laundry Lomax, our experienced wills and estates lawyers can provide advice about preparing or updating a Will, including situations where there are concerns about testamentary capacity.
If you need assistance with your estate planning, contact Somerville Laundry Lomax for advice tailored to your circumstances.
This article provides general information only and is not intended to be legal advice. You should obtain professional advice relevant to your circumstances.