Capacity to make a will

Date: Jun 20, 2014
Document Type: Article

In order to make a will a person must have sufficient mental capacity. If a person does not have the required mental capacity their will may be found to be invalid.

To have sufficient capacity to make a will a will maker must:

  • Understand the nature of his or her act in making a will
  • Understand the effect of making a will
  • Be aware of the extent of the property he or she is disposing
  • Appreciate that there will be certain persons who may have claim on his or her estate

Capacity to make a will can fluctuate. A person may have the capacity to make a will at the beginning of the day but lack that capacity by the afternoon. This is often the case when the will maker is elderly, ill or taking strong medications. Capacity of the person making the will is measured at the time the will is made not hours before or after the will is made.

It is important to distinguish between the will maker having difficulty deciding how they wish to leave their estate and the will make having difficulty understanding the nature and effect of making a will. It is common for will makers, whether they are well or not, to have difficulty deciding how they wish to leave their estate. This does not mean those will makers lack capacity. The fact a will maker is having difficulty deciding how to leave there estate may signal they understand the legal effect of the decision they are trying to make.

To speak to an experienced estate solicitor about making a will, capacity issues or any other estate issue call us on 02 8268 4000.

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