In order for a will to be valid in NSW, the testator (i.e. the person making the will) must have the capacity to understand the precise nature and effect of the document they are executing. If there is evidence to suggest that the testator did not have such capacity, then the validity of the will may be challenged.

For example, a child of the testator may seek to have the affected will struck out in favour of the prior will on the basis that the testator was affected by a disease of the mind, such as Alzheimer’s disease, and thus the testator did not have the capacity to properly understand the later will.

These are extremely valid concerns and when making a will the creator must take extra care to show that the testator had the requisite capacity in order to defend future claims.

There are four factors that must be satisfied in determining whether a testator has capacity. They are:

  1. That the testator knows the precise nature and effect of the will they are making;
  2. That the testator knows the general details of the property which the will affects;
  3. That the testator knows which people have a reasonable claim over their property and whom it would be appropriate to leave their property to. This question may be resolved by the testator providing justification when a person, e.g. a child, is intentionally left out of a will; and
  4. That the testator is not suffering from a condition, such as mental illness or impairment, that prevents them from making a rational decision.

If any of these factors are missing, the will may be set aside on the grounds that the testator lacked capacity.

In general, a solicitor preparing a will must confirm the testator’s capacity by asking them questions to ensure that the above factors are satisfied. To this end, it is important that the testator be allowed to answer these questions by themselves and in their own words, notwithstanding that it may be tempting for their carers to try to help them. Thus, if a solicitor preparing a will asks any other people present to leave them alone with the testator, it may merely be to ensure that the testator has capacity to validly execute the will.

If you want more information on testamentary capacity and preparing wills, please contact Peter Bahlmann, or Anna Masi of our office. If you want more information on challenging wills on the basis of lack of capacity, please contact Tom Sherley of our office.