The decision of Banks v Goodfellow (1870) LR 5 QB 549 at 565 outlines a four part test as to whether a testator has capacity to make a will. The testator must be at the time of giving their instructions and execution be of sound mind, memory and understanding. The solicitor will ascertain the following:
- That the testator understands the nature of the act and the effect of their Will.
- That the testator understands the extent of their property that is being disposed. Usually a solicitor will request a list of assets, liabilities and superannuation and keep a copy of that list with the executed Will in safe custody. This list will assist with preparation of probate once the testator passes.
- That the testator comprehends and appreciates the moral claims of the beneficiaries of the testator’s assets Re Estate of Griffith (1995) 217 ALR 284
- That the testator does not suffer from or have been influenced by insane delusions – a belief that is not true in fact. The testator does not have irrational thoughts Bull v Fulton (1942) 66 CLR 295.
Further, a good solicitor will also consider obtaining updated medical evidence Re Key (dec’d) [2010] 1 WLR 2020, make excellent file notes and consider the likelihood of any challenge to the Will to sure it up. A solicitor may even go the extra mile and consider what a Registrar of the Supreme Court might consider when granting probate.
It might also be prudent to have a doctor present when the Will is executed if a person suffers from dementia but has lucid periods per Estate of Griffiths & Ors (unreported, Supreme Court of NSW, Court of Appeal No. 40495 of 1994).
If you would like to discuss any concerns about your capacity to make a Will or you are concerned about your loved one’s capacity please contact our office, one of our experiences lawyers would be happy to discuss your concerns.
