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Wills & Succession
9. Challenging a Will
Authors: Savage Julia
Firm / Chambers:
Last updated: 24 Aug 2015
- A testator must have sound mind, memory and understanding in order to make a will.
- In relation to making a will this is known as having testamentary capacity.
- Capacity may relate to age. For example a testator must be over 18 years old and have the level of memory and understanding of an 18 year old.
- A testator who has a cognitive impairment may be vulnerable to the influence of others. If a will is made under the influence of another person this may invalidate the will.
- There is no definitive meaning of capacity but it is generally accepted that the testator must be able to understand:
- what a will does;
- the impact of their decisions; and
- the people who may have a claim on their estate.
- Importantly a testator may have capacity in some areas of their life but not in others. For example a person may have an intellectual disability that prevents them from caring for themselves independently but may still have the requisite capacity to make a will.
- The testator may also have the requisite capacity on some days but not others for example in the case of a person on medication that affects their cognitive processes.
- If there is any doubt about a testator’s mental capacity it is essential that their medical practitioner be consulted so that they may have their capacity independently assessed.
- The doctor must be able to verify that the testator has capacity to manage their own affairs.
- A lawyer is not qualified to make an assessment of a person’s mental capacity.
- However if there are doubts about a testator’s capacity a lawyer may make a preliminary assessment.
- They would certainly need to assess the testator and document their findings on the day the will is signed. This is done by the lawyer asking probing questions that are designed to evaluate a testator’s memory and understanding.
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