Capacity in Making a Will

The most challenging issue when surrounding contentious Wills is whether the Will maker had capacity at the time they made the Will.

A Will is a very important document as it outlines how the Will maker wishes to distribute their assets. Sometimes a Will maker may be influenced by other people in “assisting” with making their decision as to how to distribute their estate.

This is most commonly seen in the elderly when they are updating their Will in their later stages of life and a lot of pressure is placed upon them by one or more of their children or family members.

Solicitors have discretion to make the decision whether a person has capacity to make a Will. There is a legal assessment that lawyers take to ascertain whether a person has capacity. This assessment arose from Banks v Goodfellow which sets out a low means of assessing whether someone has capacity. The four-test measure is based on:

  • The Will maker understands the nature and the affects of a Will;
  • The Will maker understands their assets and liabilities;
  • The Will maker understands the potential claims which may arise from their instructions and can consider same;
  • Are not suffering from any disorders/illnesses which may affect any decision-making capacity in disposing of their estate.

In order to minimalise any future possible Part IV claims or claims to invalidating the Will due to capacity, we always request anyone over the age of seventy (70) years old obtain a certificate from a medical practitioner confirming they have testamentary capacity to make a Will.

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