Disability
11. Making a Will
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 16 Jul 2015
- Although no one is obliged to make a will it is a good idea to do so. If you do not make a will then your property will be split up between relatives according to the rules contained in the Succession Act 2006 (Cth).
- If you have specific wishes as to how your property and assets should be distributed after your death then you should make a will. This is regardless of the value of your assets or whether you have a disability. For more information see our Wills & Succession topic.
- Most people with a disability can make a will. This naturally includes people with an intellectual disability. The individual just needs to understand what a will is and what effect it will have if they die.
- The capacity to make a will is referred to as 'testamentary capacity.' The person making the will must:
- know that a will dictates the way their property is treated after they die;
- understand generally the nature of the property they own;
- understand who may have a claim to their property upon their death; and
- be able to weigh up the claims of these people.
- If a person can understand these things then they are considered to have testamentary capacity.
- If you have a child or other dependant with a disability then you should certainly consider making a will in order to provide for that person throughout their life. Your will can be drafted to be flexible enough to cater for their changing needs throughout their life.
- If there is no will a person with a disability will inherit according to the normal legal rules. This may or may not be specific enough to provide the kind of care and guidance that you desire them to have.
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