What is testamentary capacity and what are the risks to the validity of your will?
A testator (person making a will) must meet a certain standard of comprehension in order to have testamentary capacity. If there is doubt as to their testamentary capacity, eligible parties may challenge the validity of the will or the court may have concerns about its validity.
A testator is presumed to have testamentary capacity. While age or illness are circumstances that will attract the scrutiny of the Court, neither is, of itself, sufficient to establish incapacity. However, if the death certificate of the deceased mentions cognitive impairment, Alzheimer or other conditions that can affect cognitive abilities, the question of capacity arises and proof of capacity falls upon the executor or the person who is propounding the will.
The classic test from an 1870 British case, Banks v Goodfellow (1870) LR 5 QB 549, which is still used to determine testamentary capacity today:
1. The testator must be aware, and appreciate the significance, of the act in the law upon which they are about to embark;
2. The testator must be aware, at least in general terms, of the nature, extent and value of the estate over which they have a disposing power;
3, The testator must be aware of those who may reasonably be thought to have a claim upon their testamentary bounty, and the basis for, and nature of, the claims of such persons;
4. The testator must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.
Establishing testamentary capacity can be a common concern for someone making a will, particularly for a testator who is elderly or who suffers from psychological or cognitive impairment.
Engaging a solicitor to draft their will instead of relying on an informal will or filling out a will kit is a crucial step that a testator can take to ensure their will is considered valid. Solicitors have a professional obligation to make reasonable enquiries and assessments as to the testamentary capacity of their client. As such, the court is predisposed to presume that a will that has been prepared by a solicitor is a sign that the testator had sufficient capacity to make a will.
Additionally, if there is likely to be doubt about testamentary capacity, a testator can consult a doctor for a capacity evaluation when they sign their will. If someone then challenges the will, this report can be crucial to prove its validity.
The wills and succession team at Andrew Gardiner Law can help whether you have concerns about the validity of your will or another person’s will. Your peace of mind is priceless.
Please contact our helpful team on (07) 5391 4900 or via our website today.
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