Testamentary capacity is a person’s ability to make a valid Will. But it means more than simply writing down wishes on paper or being physically able to sign a document.
What does testamentary capacity involve?
Making a Will involves being able to decide who gets your assets and how. It requires a person to have clear mental faculties to understand what they are doing and who will receive their estate. They must also know what they own and who might reasonably expect to receive a benefit from their estate. Additionally, they must be able to make decisions about their testamentary wishes with full knowledge, free of influence, and free of any mental impairment that would prevent rational decisions.
How do we assess capacity to make a valid Will?
The gold standard legal test for capacity to make a Will was established in the 1870 UK case of Banks v Goodfellow. The four key questions that remain applicable today are:
- Does the person know what a Will is and does?
- Do they know what assets they own?
- Are they aware of the people who might reasonably expect to receive from their Will?
- Do they have a disorder or impairment that clouds their decision-making ability?
Complexities in assessing capacity
There are many complexities when assessing capacity. For example, having a diagnosed mental condition or disability does not automatically exclude someone from making a Will, as long as they can give competent instructions and make rational decisions.
An adult is presumed to have testamentary capacity unless there is strong evidence to suggest otherwise. If there are doubts, the lawyer taking instructions must ask the right questions to ensure the test is passed. Thorough and timely note-taking is essential to verify this process.
Protecting against Will challenges
If there are concerns that a person’s Will might be challenged, such as by a disgruntled beneficiary, it is wise to seek supporting evidence of the person’s capacity, such as a doctor’s written assessment. This documentation can help if a Will challenge arises.
Other factors, such as pressure from family members or concerns over unfair distributions, can also affect a person’s decision-making and lead to Will challenges. These must be carefully managed by both the Will-maker and the lawyer.
The formal requirements for making a Will in WA
Once capacity is established and the Will is prepared and approved, it must be signed by the person and witnessed by two competent adults, who are present at the same time. Preferably, these witnesses should not be named in the Will.
The formal requirements for a valid Will in Western Australia are set out in the Wills Act 1970 (WA). This Act outlines:
- Who can legally make a Will
- How the Will must be executed
- Dealing with alterations after signing
- Who may witness a Will
- Circumstances in which a Will is revoked or revived
The importance of Will storage
The security of the original Will is often overlooked but is vital to ensure it can be found and used. The original, once signed, should remain bound, unmarked, and intact. It should be kept in a safe place where it can be retrieved by the Executor after the person’s death.
Many heartbreaking cases arise due to lost Wills, missing pages, or outdated documents, which make it difficult or impossible to prove the Will and obtain Probate, the court’s validation that gives an Executor legal authority over the estate.
Ensuring the validity of your Will
Testamentary capacity and making a valid Will are underpinned by well-established legal standards that must be carefully understood and followed. A lawyer experienced in estate planning can ensure that your wishes are effectively captured and carried out in a legally sound document. Where capacity may be an issue, a specialised estate planner can advise on alternative options or manage family expectations.
Even seemingly simple circumstances require careful consideration to ensure that all legal requirements are met, giving your Will the best chance of holding up when it matters most.
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Brigitte was always meant to be at Solomon Hollett – so much she finds herself with her name on the front door, despite being no relation of Craig’s! Estate planning has been a common thread throughout her career. Before joining SHL, she focused on Wills and succession work, after having spent time in other roles within the trusts, estate planning and administration space, and some commercial and migration law. She has worked for professional trustee companies, smaller boutique firms and practices across a range of clients and wealth brackets. Her love for estate planning centres on getting to know clients and what really drives them, their family dynamics, goals and values. There are many interesting and tricky conversations, lots of “option-storming” and ultimately finding solutions that never look the same as the next matter given no two families are ever the same. Spending time with her two young children and husband is what Brigitte enjoys most, alongside culinary pursuits at home and sampling new restaurants. Ever since she can recall Brigitte has loved reading, analysing, language and writing, going so far as pulling together a fairly large, somewhat cryptic collection of poems that we will be strongly encouraging her to publish!
Please note the content within these blog posts is not intended to, and does not in fact, constitute legal advice, and must be treated as a general guide only. The content is based on Western Australian law only and is subject to change, is general and may not take into account your particular circumstances. Should you require legal advice in relation to your specific circumstances, please reach out.