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The general legal position is that individuals over the age of 18 are presumed to be competent to give instructions to a lawyer to make a valid will. However, they must be of sound mind, memory and understanding.

In each case, a lawyer examines the person’s particular circumstances to determine whether that person possesses sufficient legal competence to make a will. We look at below how a lawyer checks whether an individual has the capacity to create a valid will.

How Does a Lawyer Check For Capacity?

Your lawyer will use well-established principles to confirm that you have capacity (Banks v Goodfellow (1871)). They will ask some simple questions to make sure that you:

  • Understand the nature and effect of a will;
  • Are aware of the general nature and extent of your property;
  • Are aware of family members or others who might reasonably be expected to have a claim on your property; and
  • Can evaluate the respective strengths and weaknesses of those claims.

Many lawyers engage in good general practice and assess capacity for all clients over 65 to normalise the procedure, and address any concerns that may arise later on.

They will take comprehensive instructions from you and will usually require you to provide these on your own. They will explain the scope of the will, and it’s legal effects and ask you to provide an understanding of the document in your own words. If you already have a will, they may also ask you about the reasoning behind any proposed changes. They will keep detailed notes of your instructions, reasons for your choices and the explanations they gave you.

Once they have taken your instructions, they will confirm what you have instructed in regards to your estate. They will examine your financial information, such as balance sheets, company documentation, superannuation deeds and documents of title with the assistance of your accountant and other relevant sources. This is because all ownership of assets and liabilities must be verified before execution of your will.

What if There Are Concerns About My Capacity?

Some things can affect a person’s ability to have the capacity to make a valid will. These factors can include age, because of issues like dementia and ill health, mental illness and disabilities. If you are concerned that any of these circumstances may apply to you, it is best to let your lawyer know immediately. They will ask a health professional to help make an assessment of your capacity to make sure there can be no challenges to your will later on.

They might also ask a support person to assist you if they are acting clearly in your best interests. All of this is done to ensure a court would uphold your intentions in your will if any parties are unhappy with your decisions. The court’s position is that a will-maker is assumed to be of sound mind unless evidence presented to the court suggesting otherwise. This means that someone has to challenge your capacity at the time you made the will by providing certain evidence to the court, such as expert reports from general practitioners or psychiatrists. At this point, it will be up to the person putting forward the will as valid (usually the executor) to prove that the will-maker did have capacity.

Key Takeaways

It is strongly recommended to obtain legal advice when creating a will because of the implications of its effects, and the importance of the document to your life and your estate. This is especially the case if you have multiple parties, assets and liabilities that you need to address which will make the drafting of your will fairly complex.

We have assisted many individuals in creating wills that clearly reflect their intentions, and will protect them and their families for the future.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.


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