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Capacity of a person when making a Will

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Testamentary capacity

In Australia, a person making a Will must be at least 18 years of age and have testamentary capacity. Testamentary capacity refers to a person’s mental capacity when creating a Will. It means that, if a person has testamentary capacity, they can understand:

  • A purpose of a Will and its effects 
  • What assets they have 
  • What their assets are
  • Who can or should be fit to be beneficiaries 
  • Why they want to gift their estate the way they chose to

A person who has a mental illness, or even a medical condition, may fall under the category of not having the appropriate mental capacity. If a lawyer suspects that their client does not have the appropriate capacity, lawyers may request for a medical report to assist them in their determination if the person has the capacity to create a Will.

What happens if the person lacks capacity?

The question the arises, “What happens if a person lacks the capacity to create a Will?”

A person who lacks the capacity to create a Will may be eligible for a Statutory Will. A statutory Will is a Will made by the Court. This occurs when the Court authorises for a Will to be created, or in some circumstances, revoked, for a person who lacks testamentary capacity. This enables the person who lacks the testamentary capacity to be created in a Statutory Will. 

Who can apply for a Statutory Will?

A family member, a care giver, or a person who is otherwise an authorised person, may make an application to the Court for a Statutory Will to be created for the person who lacks testamentary capacity. The Court will determine the application by considering the evidence relating to the person before authorising a Statutory Will to be created. 

If someone you know cannot create a Will due to a lack of testamentary capacity, please contact us so we can assist in the application for a Statutory Will.

For more information, please contact Daryl Cleofe on 0468 620 033 or via our contact form

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