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Mental capacity and signing wills

Posted on 26th November 2018
Catherine Henry Lawyers
Catherine Henry Lawyers

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Mental capacity

It is quite often that concerns are raised following the death of a person (‘testator’) that they may have lacked mental capacity when they signed their will.

For a will to be valid, the testator needs to have testamentary capacity (in addition to meeting other requirements). The long-standing test for testamentary capacity was established in the 1870 decision of Banks v Goodfellow.

The test requires that the testator must:

  • Understand the nature and effect of the will;
  • Have an idea of the extent of the property that will be given under the will;
  • Be aware of the persons who they’re expected to provide for, and no delusions of the mind that would cause the testator to not provide to those persons.

The fact that someone is terminally ill, elderly or has been diagnosed with dementia or Alzheimer’s does not necessarily mean that they do not have testamentary capacity. If the testator meets the above mentioned requirements, then they’re considered to have capacity.

If there is concern that the testator did not have capacity when they executed the will, following the death of the testator, a person may lodge a caveat on probate or administration. This person (‘the caveator’) must have a legitimate interest in the application and/or estate of the deceased i.e. that they were a beneficiary under a previous will. This caveat prevents the Court from issuing the grant and remains enforce for six months until the caveat lapses or is withdrawn. The six-month period allows the caveator to then challenge the validity of the will.

It is best that you seek legal advice before taking any steps to challenge the validity of a will. Our team can assist you by providing expert advice and legal support regarding your options. Contact us today on (02) 4929 3995.

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