Testamentary Capacity:

Testamentary capacity refers to the ability of a will maker, or testator, to have soundness of mind, memory and understanding at the time they draft their will. A competent and proper Wills and Estates lawyer needs to have a thorough knowledge of your affairs, both family and financial. They also need to make an assessment of capacity, often by interview but also by medical examination.

Testamentary capacity is a significant issue because a will can be challenged on the ground that the testator lacked capacity at the time of execution. Considering that many wills are drafted or amended at a later stage in a person’s life, this is a tremendous issue particularly in an aging population. 

In determining whether or not there was a lack of testamentary capacity by a testator, a number of factors are examined closely. Firstly, is the issue of whether or not the testator had an understanding of the nature of the will and its effects. Secondly, the testator needs to have an understanding of the extent of the property which he or she is disposing of. Thirdly, is being able to comprehend and appreciate the possible claims from potential beneficiaries, this refers to claims for Family Provision under the Succession Act. Lastly, is that at the time that the testator executes a will, he or she can not be affected from any mental disorder, illness or disease. This includes dementia, Alzheimer’s, Aspergers, Autism and Bipolar Disorder,

If any one of these four aspects of capacity is defective, this may affect the validity of the will. This means that any distributions made may be held void because the will was not made in circumstances where the testator was of sound mind.

If there is doubt about capacity, it may be the more prudent approach to make a codicil to an existing will made when capacity was certain, than to make a new, revoking, will. A qualified Wills and Estates Lawyer will be able to have regard to your situation and determine any potential issues and conflicts that might arise in respect of testamentary capacity and provide you with preliminary legal advice to protect your interests accordingly.

If a will is made without the appropriate checks and balances upon the testator’s capacity, this can cause major problems in the future once the testator deceases and an application for probate needs to be done. A challenge may be made against the validity of the will at the time it was made. This could lead to extensive and complex litigation, as witnesses will need to swear affidavits and put on evidence; expert evidence may need to be obtained by qualified, specialist medical professionals, and a fact-finding expedition may need to be initiated and completed.

A will made where it has been deemed that testamentary capacity was lacking at its time of origination may lead to a number of different outcomes. If a will is deemed invalid, an earlier will may need to be submitted for probate, or an application for letters of administration may need to be made, or the executors may need to be substituted for ones appointed by the Court. This may be a huge expense to the estate and significantly diminish its value for distribution to the beneficiaries and reduce their entitlement. The litigation procedure may be lengthy, wasteful and non-conclusive, as the law in this area of practice is quite complicated, diverse and requires consideration on a case-by-case basis.

Furthermore, this may create an unnecessary amount of delay, inconvenience as well as costs. Proper legal advice from a qualified Wills and Estates Lawyer may be able to ensure that a will is drafted and executed in circumstances that ensure the prospects that the Will is not later deemed invalid by reason of lack of testamentary capacity. 

If you would like further information or wish to discuss your matter with us please do not hesitate to contact us by telephone on (02) 9233 4048 or by email to info@navado.com.au. 

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