Legal capacity to make a Will

Wills & Deceased Estates

Capacity to make a Will is assessed:

  • at the date(s) that instructions are given for the proposed will; and
  • at the date that the Will is signed

with primary importance being attached to the date(s) of giving instructions. 

The relevant criteria are that a will maker must:

  1. be aware of the nature and the value of the estate he or she is leaving;
  2. be aware of those who have a claim to the estate and the basis for those claims; and
  3. have the ability to evaluate and discriminate between the respective strengths of those claims. 

This criteria is assessed in the context of the degree of complexity of the Will eventually signed.  The more complex a Will the greater the degree of mental facilities required.

One very relevant consideration is the medication that a person may have been on at the relevant dates and his or her physical condition and emotional state.  These can influence the ability to evaluate and discriminate and make judgments concerning respective claims on an estate.

There are times when it is prudent to have a specialist medical opinion obtained prior to the Will being made. This can be especially the case where the proposed Will maker is elderly, physically frail or has some form of cognitive impairment or restriction.

At McNabs we are well placed to assist you in any queries that you might have in this area.

We can help

We will respond within the next business day. You can also call 03 9670 9691.