The Capacity to make a Will – by Anthony Miller, Principal Lawyer.

At what point does a person no longer have the capacity to make a Will?

Well under succession legislation Testamentary Capacity requires that the will-maker had sound mind, memory and understanding at the time of making the Will. The precedent test comes from the 1870 case of Banks v Goodfellow in which it was said “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its affects and shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall position his affections, pervert his sense of right, or prevent the exercise of his natural faculties.  That no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would have not been made.”

Recently in the 2018 New South Wales case of Carrs -v- Hommersham this test was used. In this case a niece was challenging the will on the basis that the niece believed her aunt excluded her from her will due to a false belief as to the niece’s conduct. This case focused on the element of insane delusions as a factor in determining whether the will maker had capacity. In deciding that the will maker did have the required capacity, the Court reasoned that a false belief, by itself, is not sufficient to warrant a conclusion that the testator lacked testamentary capacity.  The case law affirms that the false belief must be in the nature of a delusion and be of a kind to indicate unsoundness of mind. Simply because a person has an opinion or belief about the character of another person, which may in fact not be true, does not amount to a delusion.

Miller Sockhill Lawyers, Based in Maroochydore on the Sunshine Coast are able to assist with all estate planning matters. Contact us today.