A Will is an important document as it sets out your wishes about how your assets, young children and estate are to be managed and cared for after your death.
When making a Will, for it is be legally valid, you need to have testamentary capacity. But what does this mean?
The test for capacity
When you think of capacity in terms of making a Will, you need to think about mental understanding rather than physical capacity.
In the case of Banks v Goodfellow in 1870, the court created a test to establish whether someone has testamentary capacity when making a Will. To establish such capacity, the person making the Will must:
- understand the intent and effect of making a Will;
- understand what assets they have available to dispose of by their Will;
- recognise those people who are eligible to make a claim against their estate; and
- understand who they have a moral or legal obligation to.
What happens if someone doesn’t have testamentary capacity?
If someone does not have testamentary capacity at the time of making their Will, it could create a dispute after their death. If this occurs, it will be the Supreme Court of Victoria who determines whether or not the Will is invalid.
If someone does not have testamentary capacity to make a Will, it is possible to apply to the Supreme Court for the making of a Statutory Will. This is a process in which you submit to the Court the terms of your intended Will and the court assesses whether to authorise the document as a valid Will.
If someone does not have a Will at the time of their death, then they have died ‘intestate’. This means that the laws of intestacy apply and dictate who is eligible to receive the inheritance from the estate.
How can Nevett Ford help?
Testamentary capacity is the most integral part of making a Will and therefore we always advise clients not to put off making a Will. We do not know what our future holds and by engaging a lawyer to assist with your Will, we can ask the right questions to assess capacity and take documented notes to detail your instructions about capacity. If at any time we are concerned about your testamentary capacity, we will raise this with you and may request assistance from your medical practitioner to provide a report or letter as to your capability to make a Will.
Our Wills and Estates Team work with our clients so that we get to know them and understand their wishes when it comes to their Wills.
For more information, please email us at melbourne@nevettford.com.au or call on +613 9614 7111.