Making a Will for Someone Who Lacks ‘Capacity’

Making sure your will is ‘valid’ is an extremely important exercise, and will affect the ease with which your intended beneficiaries receive parts of your estate. The validity of a will requires that a number of formal requirements be satisfied, amongst which is the question of ‘capacity’.

Having ‘capacity’ is something that crops up quite a lot in Law, particularly with regards to entering into agreements and contracts. Generally speaking, capacity means that a person is of sound mind and is capable of understanding the agreement he or she is entering into. This being said, a lack of capacity does not necessarily disentitle someone from having a will, but instead requires a slightly different process than the usual will-making procedure.

The Recent Queensland Supreme Court Case of MPL

MPL (who’s real name has been suppressed for privacy reasons) was a 24 year-old man who suffered a traumatic brain injury. As a result of this injury, he received over $7m in compensation. Shortly after receiving this compensation payment, he realised that he ought to prepare a will – which he instructed his solicitor to do.

His mother had some concerns over his degree of ‘capacity’ and worried that his diminished capacity may invalidate his will. To prevent this from happening, she applied to the Court for what is called a ‘Statutory Will’.

A Statutory Will is often written in exactly the same terms as the original will, but requires the Court’s consent. Before this consent can be granted by a Court, it must first be satisfied that the will-maker actually lacks testamentary capacity (the ability to understand his or her own will).

The Queensland Supreme Court in MPL helpfully laid out the requirements for testamentary capacity. In order for testamentary capacity to be established, at the time a will is signed, the person making it must:

  • understand the nature and effect of making a will;
  • understand the extent of their property that they are disposing of by their will; and
  • appreciate that claims could be made on their estate when they die.

While MPL could certainly understand the nature and effect of his will, his injuries meant that he now suffered from chronic short-term memory loss. Doctors’ reports submitted to the Court showed that he could report to his solicitor (after being prompted) the amount of his compensation payout, but could not recall it of his own accord when speaking with doctors.

The Court therefore held that MPL lacked testamentary capacity to make a will, and that the Court should make one for him – a Statutory Will was therefore granted.

What Does this Mean for You?

While the example of a young man suffering a traumatic brain injury and subsequently receiving a seven-figure payout is fairly unique, its implications are far more wide reaching. What this case reminds us of, is that in certain cases, deteriorations in health can have an invalidating effect on your will.

In keeping with responsible estate planning, both yourself and your loved ones ought to be regularly reviewing your will after any significant events (e.g., the birth of a grandchild, the acquisition or sale of property) (this may help prevent will challenges or disputes in the future). If, for whatever reason, your health begins to deteriorate to a point where your own (or your loved ones’) testamentary capacity can be called into question, requesting a Statutory Will from the Courts is an excellent way of avoiding the invalidation of any changes to your will.

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