It is well known that a Will is a legal document which sets out how a person would like their assets to be distributed once they die.

Generally if you are over the age of 18 years, you can make a Will – provided you have the necessary legal capacity to know and understand the effect of doing so.

In general terms a person will have the necessary capacity if they:

  • know and understand what a Will is and what it means to make one;
  • know and understand the nature of their estate and property of which they are disposing;
  • understand the moral claims to which they should give effect when deciding to whom to leave their estate; and
  • are not delusional or suffering from a mental illness that would affect their ability to reason at the time they sign their will.

Who decides on capacity?

It is not the role of a lawyer to be an expert in assessing the capacity of their client.

However, a lawyer can be involved in carrying out a “legal” assessment of the Will maker’s capacity.

If there is doubt about someone’s mental capacity to make a will, (it is sometimes a fine line) then an opinion, preferably in writing, should be obtained from an appropriately qualified medical professional. Often the first opinion as to capacity may be obtained from a person’s general practitioner, however that may not always be the most appropriate opinion and sometimes a more specialised opinion is required in the circumstances. Any opinion should give proper consideration to the relevant tests that a will maker needs to satisfy as to capacity to make a will, and state whether or not the Will maker satisfies the relevant tests and has the required testamentary capacity to do so.

When should the Will be signed?

It is sometimes recommended that the medical practitioner providing an opinion as to capacity should be present when the Will maker signs the will. It was historically suggested that such doctor should act as one of the two witnesses to the will. In all likelihood this will not be possible. Medical practitioners generally do not have the time to involve themselves with the making of their patient’s wills and their employers and insurers are generally reluctant to have them witness wills given concerns as to personal liability arising from estate disputes.

Where there is the likelihood of the Will being challenged on the Will maker’s death on the basis of an alleged lack of capacity, it is desirable to obtain contemporaneous medical evidence from the Will maker’s treating doctor or in some cases a geriatrician or neuropsychologist addressing the Will maker’s testamentary capacity. It is prudent for the medical practitioner to conduct a thorough assessment to determine capacity and to write a report confirming their opinion.

If possible, (assuming a favourable opinion as to capacity based upon assessment), having a will executed soon thereafter is desirable.

Could the Will be challenged?

Disputes as to a Will  maker’s capacity typically arise most frequently where the Will maker is ill, for example, in hospital on medication or elderly and suffering from dementia or other illnesses around the time of making the Will.

It is more difficult to set aside a Will on grounds that the Will maker lacked testamentary capacity if the Will is prepared by a competent lawyer who took appropriate instructions from the Will maker after being satisfied that the Will maker had the requisite testamentary capacity to make a Will.

How your lawyer can help

If you are worried because you know someone who wants to make a Will and may not have capacity or may be in the early stages of dementia or suffering from some other condition that may call testamentary capacity into doubt, then it is prudent to encourage them to consult a lawyer who is experienced in Will making and to do this as soon as possible.

It is also prudent to ensure the lawyer is made aware of any concerns as to testamentary capacity so that they may be appropriately addressed. An experienced lawyer will be well adept at identifying any concerns as to capacity and applying the relevant legal tests to enable an assessment.

If you or someone else has some concerns as to an ability to make a will call us on (08) 8344 6422 or email [email protected].