There are a number of well recognised tests to determine whether a person making a Will has the capacity to make that Will.
The evidence needed, such as medical evidence, needs to focus on the time in which the Will maker gave instructions for the drafting and execution of the Will.
A Will maker must comply with certain formal requirements, including having relevant mental capacity, to make a valid Will. The issue of capacity is very important to determine whether a Will is valid.
A test for Will making capacity, or testamentary capacity, has been confirmed by a number of Court interpretations and in particular the rule in Banks and Goodfellow [1870]LR5QB549 which has been reinterpreted in modern day language in several Australian Court cases.
The four elements (three positive and one negative) are as follows: –
The Will maker: –
- must have the capacity to understand the nature of the act of making a Will and its affects
- understand the extent of the property (assets) subject of the Will
- have the capacity to comprehend the moral claims of potential beneficiaries
- must not be suffering from a condition that interferes with his or her normal decision making concerning the bequests in the Will (testamentary dispositions)
Should you wish to discuss any of these matters in detail, do not hesitate to contact one of our Solicitors on 9725 0377 (Kilsyth) or 9088 8664 (Rosebud) or email info@alpasslaw.com.au for further information.