Want your family member to create or update their Will but worried they no longer have capacity

Published 05 Apr 2017
Deane Aboud

Determining whether an individual has capacity to create a valid will can sometimes be challenging (especially if they are quite elderly or unwell). However, Justice Cockburn in the famous case of Banks v Goodfellow (1870) LR 5 QB 549 set out a threshold test in order to determine whether a person has capacity to create a valid Will. This threshold test for capacity has been applied by Australian Courts ever since, and is outlined as below:

1. The person must be aware of the effect and nature of making a valid Will.

2. The person must be mindful and have some idea about the nature and size of their estate and what they intend to dispose of it once they die.

3. The person must be able to demonstrate who they want taken care of after they die and rank their beneficiaries in some particular order.

4. The person must not have any delusions which may affect their ability to create a valid will.

It is important that the testator has the capacity to comply with the above steps. However, the testator does not have to exercise these abilities when creating the will. The onus is on the lawyer to determine whether a person has testamentary capacity by assessing the person and making the appropriate enquires in the initial meeting. Overall, if a person can satisfy the above criteria then there should be no problem for a person to update or create a valid will.

Capacity may not only be the issue, as 'knowledge and approval' is also an important consideration. There may be questions raised in circumstances where the testator is known to have a failure in the mind and has had help by someone who takes a benefit from the will. The NSW leading case for 'knowledge and approval' was seen in Tobin v Ezekiel [2012] NSWCA 285.Once a person is shown to have capacity and the will has been duly executed then there is a presumption in favour of knowledge and approval of the testator at the time a will is signed. However, where no further proof is normally required, then the courts suspicions are around as a result of the testator having a facing mind (especially where a person who played a part in the preparation of the will takes a substantial benefit). In that event, the person putting forward the will has an added burden of proving that the testator knew and approved its contents and that it reflected the testator's witness. Having said that, there is no problem in assisting your family member to create a valid will however, you must be careful not to influence them. If a person has been influenced then it may be possible for that will to be challenged which could consequently result to a long legal battle with high costs. For professional legal advice, please contact Maclarens Lawyers on 9682 3777.