Understanding "Testamentary Capacity"

For a Will to be valid, the Willmaker must have what is known as “testamentary capacity”.  Testamentary capacity is a legal rather than medical test and refers to the mental ability to make or alter a valid will.

In Victoria, a person is considered to have testamentary capacity if they:

1. Understand the nature and effect of a Will

2. Understand the nature and extent of their property

3. Comprehend and appreciate the claims to which they ought to give effect

4. Be suffering from no disorder of the mind or insane delusions that would result in an unwanted disposition

Although a Willmaker is assumed to have testamentary capacity, unless there is evidence to the contrary, it is incredibly important for the lawyer taking the Willmaker’s instructions to ensure that the Willmaker has testamentary capacity to in case of future challenges to the Will once the Willmaker has died.

Having this information gathered at the time of making the Will is why OFRM will lawyers will discuss with you details about your family and your property, even if those details don’t explicitly appear in your Will.  

This is certainly not intended to make life difficult for you, what we are doing is ensuring that when the Will comes into effect, there can be no suggestion that testamentary capacity was lacked and that your wishes are upheld.