Can you make a will if you do not have testamentary capacity?
It is a fundamental principal that a person must have testamentary capacity to make a valid Will. Basically this means:
- You must understand the nature and effect of making a Will.
- You must be able to recall the nature and extent of your assets.
- You should be able to weigh up all of the factors that the average person would normally bring to mind when considering a Will.
- You must not be suffering from a medical condition which prevents you from considering the above factors.
If there is some doubt about a person’s capacity or that could be an issue it is an excellent idea to obtain a medical report at the time of making the Will. In certain circumstances, the opinion of a specialist medical practitioner such as a neuropsychologist might be appropriate.
Should a person lack the ability to make a valid Will then the Supreme Court has the power to make a Will for that person if it can be satisfied that the proposed Will accurately reflects the likely intentions of the person. Applications to the Supreme Court for approval of a Statutory Will are not common. Statutory Wills can be made for a person who has never had the capacity to make a Will or they can be made for a person who had capacity but through illness or injury, has subsequently lost the ability to make a Will.
The Court will need to consider the wishes of any person who might reasonably be affected of the making of a Court approved Will.
The difficulties around testamentary capacity are a vital reason why you should make a Will when you are fit and healthy.
The possibility of a Supreme Court will is a good reason why those with a loved one who doesn’t have testamentary capacity should seek specific advice about whether such an application is appropriate.
Russell Robertson is Bendigo’s only Accredited Wills and Estate Specialist. If you wish to chat about your will or possible issues with testamentary capacity, please phone Russell on 03 5445 1020 or email r.robertson@ofrm.com.au