WHAT IS TESTAMENTARY CAPACITY – CAPACITY TO MAKE A WILL?

Date: Mar 07, 2013
Document Type: Article

To make a valid will a person must have testamentary capacity which is described as being “... of sound disposing mind when the will is made and there must be no coercion which overpowers the volition of the testator” – Hall v Hall (1868).

The test to be applied in determining whether the testator – will-maker - was of sound disposing mind at the material time - which is when giving instructions to prepare a will - was set out in the 1870 case of Banks v Goodfellow. The testator must:

  • understand the nature of the act of making the will and its effect;
  • appreciate the extent of the property being disposed of in the will;
  • be capable of comprehending and appreciating the claims to which he ought to give effect; and
  • suffer no disorder of the mind or insane delusion.

The expression ‘insane delusion’ is explained in cases including in the following:

·         In Re Estate of Bellew NSWSC 1992: it is not necessary to find medical insanity or to characterise the delusion as insane if delusion overmasters the testator’s judgment at the time of executing the will to such an extent as to render him/her incapable of:

o   making a reasonable and proper disposition of his/her property and of

o   taking a rational view of the matters to be considered in making a will.

·         Timbury v Coffee1941: the suicide of a testator following upon the execution of a will does not give rise to a presumption of testamentary incapacity.

Reference to decided cases is useful as a reminder of relevant principles but each case is decided on its own facts.

To upset a will it must be shown that the testator was more than merely eccentric.

Old age, even extreme old age, is not of itself bar to testamentary capacity.

Matters considered by the Court usually include expert medical opinion as to the will-maker’s capacity at the time the will was made.

The developing medical understanding of Alzheimer’s disease, particularly early onset Alzheimer’s, and vascular dementia can make decisions about a person’s testamentary capacity difficult.

In appropriate circumstances the Court, on application, will authorize a will to be made, altered or revoked for a person without testamentary capacity.

Insanity and incapability are only relevant in so far they influence the testator in disposing of his or her property.

If you have concerns about a will or want to make a will, contact us for advice.

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