Many of us understand the importance of a Will, and take steps to formalise one as soon as we accumulate substantial assets. However, there may be instances where a Will cannot be entered into. The reason may be that a person “lacks capacity”. A Will is a legal document which sets out how a person wants their assets to be distributed once they die, however, if a person is unable to enter a Will for reasons such as a “lack of capacity”, that Will may be rendered void.

What does “capacity” mean?

“Capacity” in a legal context means the ability to enter into legal documents, and while doing so, being able to understand the significance of what is being done.The law states that a person has capacity to draft a Will if they:

  1. Are over the age of eighteen (18) years;
  2. Know what a Will is and the purpose it services;
  3. Know the amount and type of property they are disposing of;
  4. Understand the moral claims that may arise amongst family despite the way in which the Will is drafted; and
  5. Are not delusional or suffering from a mental illness when they sign their Will.

Who determines whether a person has capacity?

There is an assumption, at first instance, that a person creating a Will is of sound mind. The question of capacity only arises where evidence is presented to the Court that suggests otherwise, and where a Will is wanting to be challenged on this basis.When drafting a Will, a lawyer will always take into account whether the person, who is being assisted to draft that Will, has testamentary capacity. As lawyers are not medically trained professionals, in instances where a professional opinion is required, they will ask for an assessment by the person’s treating doctor such as a general practitioner, psychiatrist or geriatrician. Lawyers are skilled at carrying out an assessment for legal purposes, but in instances where there are facts that may give rise to a question of capacity, they will ask for a medical opinion as to whether the individual has “testamentary capacity” to make a Will.

Lawyers generally advise that in instances where there are questions of capacity at the time of drafting a Will, that contemporaneous medical opinion be obtained before the Will is executed. If a Will is wanting to be made, by either yourself or someone you know, and there is concern about testamentary capacity, it is important that you see an experienced lawyer who can help you make that determination.

Please do not hesitate to contact me to discuss your situation.