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A person’s ability to create a legally valid will may be uncertain where that person’s sound judgment is affected by mental disabilities. In order to possess the so-called ‘testamentary capacity’ to validly create a will, a person must be of sound mind, memory and understanding.

The case of Banks v Goodfellow establishes that a person will have ‘testamentary capacity’ if, at the time of creating or amending the will, he/she:

  • understands the nature of the will and its effects;
  • understands  the extent of the property being disposed of by the will;
  • comprehends and appreciates the claims of various people under the will; and
  • is free from any mental disorder or insane delusion influencing the disposal of his/her assets in a way which would not have been made if his/her mind was sound.

Courts presume elderly people have testamentary capacity when making or changing wills. In many instances, however, the testamentary capacity of an elderly testator will be uncertain when he/she becomes frail, falls ill, or begins to show signs of dementia or Alzheimer’s disease. To complicate matters further, sometimes a person can temporarily recover testamentary capacity so as to have capacity to make a valid will.

HHG Legal Group’s Wills and Estate Planning team is well experienced to assist you with these uncertainties. Alternatively, speak to our Commercial Litigation team if you believe a will was made without testamentary capacity or if you are seeking to otherwise challenge a will.

If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*This information serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable Legal Team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.