Worried About Capacity and Making a Will?

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:

  1. That the testator understands the nature of the act and the effect of their Will.
  2. 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.
  3. 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
  4. 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.

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