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.