Wills – Testamentary Capacity
People aged over 60 are these days living longer than in previous generations. Often financial and life circumstances continue to change with advancing age, so that it is not uncommon for people in their 80’s and beyond to want to update their Wills. Whether they can legally do so, depends on whether at the time of making the Will, they have sufficient understanding or what is in law termed, ‘testamentary capacity’.
The classic statement of the law relating to testamentary capacity dates back more than 100 years, and is still good law. In assessing whether a Will maker has testamentary capacity, the law asks the following:
- Does the Will maker understand the nature and effect of making a Will? In other words, does he or she understand that a Will disposes of his or her assets after death?
- Does the Will maker understand the extent of the property of which he or she is disposing, that is, does the Will maker have a general appreciation of the assets he or she owns?
- Does the Will maker understand and appreciate the claims of which he ought to give effect, that is, does he or she understand and recall the close family members that he or she would ordinarily be expected to make provision for?
- Is the Will maker in considering potential beneficiaries, able to weigh up competing claims of various family members?
- And in considering the competing claims of various family members, can the Will maker do so giving due and proper consideration to relevant matters without being influenced by some disorder of the mind or insane delusion?
In situations where the Will maker is suffering from dementia, (a problem which arises with advancing age), it is not necessarily the case that the Will maker lacks testamentary capacity. Each case depends on its own facts. As a condition which gets progressively worse, there will almost certainly come a time when the Will maker suffering from dementia will lack the capacity to make a Will.
If the dementia is such that it has “brought about disturbance to [the Will maker’s] intelligence, cognition thought content and thought processes, judgement and the like, then even if the condition maybe transient,… the Will maker will, more probably than not be held to lack testamentary capacity.” Powell JA in Read v Carmody (NSWCA no 40581/95, 23 July 1998, unreported BC9803374)
Courts generally scrutinise a Will made by a person of advanced age more closely than might otherwise be the case, and Wills are sometimes challenged by would be beneficiaries on the ground that the testator lacked testamentary capacity at the time of making his or her last Will. If such a challenge is successful, the result is that the Will maker’s last Will is invalid and the estate will fall to be distributed in accordance with the Will maker’s prior Will, provided that it has not been revoked, or where there is no prior Will, in accordance with the laws of intestacy.
Disclaimer:
The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Ms Eleanor Coates of Kenna Teasdale Lawyers, Melbourne. |
