It is well known that a Will is a legal document which sets out how a person wants their assets to be distributed once they die.

If you are over the age of 18, you can make a Will – provided you have capacity.

In general terms, a person making a Will (a testator) has the necessary capacity if they:

• know what a Will is;
• know of the amount and type of property they are disposing of;
• understand the moral claims to which they should give consideration when deciding to whom to leave their property; and
• are not delusional or suffering from a mental illness at the time they sign their Will.

Who decides on capacity?

It is not the role of a lawyer to be an expert in assessing the capacity of their client.

However, a lawyer can be involved in carrying out a “legal” assessment of the testator’s capacity.

If there is a question about someone’s capacity to make a Will, then an opinion, preferably in writing, should be obtained from that person’s doctor. The opinion should state that the person has the required testamentary capacity to make a Will.

When should the Will be signed?

It would be ideal if the doctor could be present when the testator signs the Will, and even better if the doctor is one of the two witnesses to the Will. However, this is not usually possible.

Where it is likely that the testator’s Will will be challenged on the basis of lack of capacity, it is best practice for the testator  to provide instructions to the lawyer and sign the Will on the same day.

Having a medical report stating that, in the doctor’s opinion, the testator had capacity and then on the same day the person provided instructions and signed their Will, places the testator in a strong position so far as capacity is concerned.

Can the validity of a Will be challenged?

A Will can be challenged on the grounds that the testator did not have testamentary capacity when they signed the Will. This arises most frequently where the testator is ill, for example, in hospital, on medication,  elderly, or suffering from dementia or Alzheimer’s disease.

It is difficult to set aside a Will on grounds that the testator lacked testamentary capacity if the Will is prepared by a lawyer who took appropriate instructions from the testator and was satisfied that he or she had the requisite testamentary capacity to make a Will.

How TLS can help

If you are worried because you know someone who wants to make a Will and may not have testamentary capacity, then it is prudent to encourage them to consult a lawyer who is experienced in preparing Wills as soon as possible.

It is also prudent to ensure the lawyer is made aware of the potential lack of testamentary capacity as  it may be necessary for the testator to first attend their doctor for a written report that can be provided to the lawyer.

With prior notice, the team at TLS can accommodate preparing and signing the testator’s Will on the same day the testator obtains a doctor’s written report, putting the testator in the strongest position against challenges to the validity of their Will.

If you require assistance in preparing a Will for someone who may lack testamentary capacity, then please feel welcome to call us on 08 6383 5551 or email re*******@*ls.law.