There are some well-recognised tests to determine whether a person making a will has the capacity to make that will. The evidence needed, such as medical evidence, needs to focus on the time at which the will-maker gave instructions for the drafting and execution of the will.
A will-maker must comply with certain formal requirements, including having relevant mental capacity to make a valid will. This issue of capacity is very important to determine whether a will is valid.
A test for will-making capacity – or testamentary capacity, as it is known – has been confirmed by a number of court interpretations, and in particular the rule in Banks & Goodfellow (1870) LR 5 QB 549, which has been reinterpreted in modern-day language in several Australian courts.
The will-maker must:
• Have the capacity to understand the nature of the act of making a will and its effects;
• Understand the extent of the property (assets), the subject of the will;
• Have the capacity to comprehend the moral claims of potential beneficiaries; and,
• Not be suffering from a condition that interferes with his or her normal decision-making concerning the bequests in the will (testamentary dispositions).
Should you wish to discuss any of these matters in detail, do not hesitate to contact Alan Alpass or Barbara Kramer at Alpass & Associates at their Rosebud office on 9088 8664 or at Kilsyth on 9725 0377.