There are a number of reasons that Wills may disputed, and each case has it’s own circumstances and merits.
At Hentys Lawyers, it is our experience that many family members or close friends of the deceased will contest a will when they believe that it did not reflect the true intentions of the deceased, as they were not of sound mind when the will was written and signed.
WHAT IS TESTAMENTARY CAPACITY?
Testamentary capacity refers to the mental capacity of the deceased at the time of writing their last will and testament. In order for the will to be valid, the testator (the person making the will) must be of sound mind, memory and understanding.
A will-maker is assumed to have testamentary capacity unless evidence can be presented to the court on the contrary, in which case it is up to the executor of the will to prove that they did.
If the court determines that the deceased did not have the mental capacity to make a legally binding and valid will, it can be set aside and will not be taken into consideration when distributing the assets of the deceased.
CHALLENGING A WILL ON THE GROUNDS OF TESTAMENTARY CAPACITY
It is the experience of Hentys Lawyers that most wills are contested on the basis of testamentary capacity occur when:
- the deceased signs a new will shortly before their death
- the deceased is very ill at the time of signing the will
- the deceased has relied upon particular people to look after them at the time of creating their will
- the deceased was removed from their family or loved ones at the time the will was created
The Law requires a person to be of sound mind when they make a will. In order to satisfy the test of Testamentary Capacity, the following must be true at the time the will was signed:
- The testator must understand the precise nature and effect of the document they are making
- The testator must appreciate what constitutes their property. This doesn’t mean that the testator must remember each and every item of property that they own, but they must understand what they generally own and have to leave to their beneficiaries
- The testator must understand which people in their life have a reasonable claim upon their property and who it is appropriate to leave property to
- They must not suffer from a medical condition that prevents them from making a rational decisions
CONDITIONS THAT MAY AFFECT TESTAMENTARY CAPACITY
Testamentary capacity can be challenged on the basis of medical conditions that affect the mind such as dementia, psychosis, alcohol related mental illness, neurological or psychiatric disorders, personality disorders and suicide. It’s important however to remember that a person suffering from one of these conditions is not automatically assumed by the Court to lack testamentary capacity.
The existence of testamentary capacity depends on the severity of the illness and whether it impairs the testator’s insight, judgment and decision-making skills. It is for this reason that medical assessment and opinion are imperative in determining whether the testator was of sound mind, memory and at the time of writing their last Will and Testament.
PREVENTING CHALLENGES TO A WILL BASED ON TESTAMENTARY CAPACITY
Wills made by older and vulnerable testators are often challenged on the basis of testamentary capacity. One measure that can be taken to prevent challenges to the will is to have a specialist or general medical practitioner assess the person’s will-making capacity at the time of writing their will.
In the event that this hasn’t been carried out at the time, and the testator has passed away, a claim may be brought against the estate by relatives who question the deceased’s testamentary capacity.