It is generally understood that a Will is a legal document which sets out how a person wants their assets to be distributed once they die.

If you are over the age of 18 you can make a Will – provided you have capacity 

How important is it to assess capacity of a person wanting to make a will?

It is important to address the issue of capacity because a Will can be challenged on the grounds that the Will maker did not have sufficient capacity when signing the Will.  This arises most frequently where the Will maker is ill, for example, in hospital on medication or has some disability affecting cognition or is elderly and suffering from dementia. Multiple legal cases have considered the issues concerning capacity when a dispute over a will arises.  

Who decides on capacity?

A lawyer is required to consider the Will maker’s capacity to give instructions for the preparation of their will but a lawyer does not have the role of an ‘expert’ when making such an assessment.

A lawyer should be careful in making a capacity assessment particularly when dealing with potentially vulnerable clients. The following issues might be considered subject to each client’s situation:

  1. Does the will maker appear to fully understand what a  will means?
  2. Does the will maker have sufficient concentration to discuss their wishes?
  3. Does the will maker understand in a satisfactory way the extent /value of their estate—assets held etc.?
  4. Does the will maker appear to have properly assessed who is to receive assets from the estate including for example what is to happen if a beneficiary dies before them?
  5. Is the will maker able to give instructions clearly and be seen alone?
  6. Is the will maker able to consider who might have claims on their estate? [ e.g., is there any relevant person who might be entitled to make a family provision claim]?
  7. Is the will maker able to explain why they might want to exclude someone who might otherwise be an eligible person to make a claim?
  8. Does the will maker appear to suffer any delusions that a reasonable solicitor should be able to determine and if so, how might they impact capacity?
  9. What explanation is there if the will maker has wanted to change their will fairly frequently over a short period of time?
  10. Is there any suspicion of undue influence?
  11. Does the will maker need an interpreter?
  12. Who is the interpreter- independent or neutral or not?

In some cases, a person’s capacity may be transient so on some occasions they could competently make a will but not   be consistently capable of so doing. It is then a matter for the lawyer to be in a position to consider whether to proceed.

If a lawyer is concerned about someone’s mental capacity to make a will, then an opinion, preferably in writing, should be obtained from that person’s treating doctor. The opinion should state that the Will maker has the required testamentary capacity to make a Will. 

If   there is the likelihood of the Will being challenged on the Will maker’s death on the basis of a lack of capacity, contemporaneous medical evidence from the Will maker’s treating doctor or in some cases a geriatrician confirming the Will maker has capacity would assist in determining whether or not a will was validly made.

How your lawyer can help.

It is difficult to set aside a Will on grounds that the Will maker lacked testamentary capacity if the Will is prepared by a competent lawyer who took appropriate instructions from the Will maker and was satisfied the Will maker had the requisite testamentary capacity to make a Will at the time it was made.

If you are worried because you know someone who wants to make a Will and may not have capacity or may be in the early stages of dementia and you are not sure, then it is prudent to encourage them to consult a lawyer who is experienced in Will making and to do this as soon as possible.

It is also prudent to ensure the lawyer is made aware of this potential difficulty and it may be necessary for the Will maker to first meet with their treating medical practitioner to discuss with their   doctor being able to provide a satisfactory written report so it can be taken to the lawyer’s office ahead of the Will making appointment. As above stated, if the will can be made as close as possible to the date of the medical report confirming capacity that would assist in ensuring a will was validly made.

What if a person lacks capacity but has not made a will?

Sometimes it is just not possible to take valid instructions to prepare a will from a person because their capacity cannot be satisfactorily confirmed.  This can be very unfortunate when a person has not made a will but has assets which will need to be dealt with after the death of the will maker, therefore requiring a far more complicated process than otherwise would be necessary.

Who should make a Will and When?

Making a will is not just something   older people should do while they have capacity.  It is recommended everyone with assets of any significance or who have young children and need to consider who would look after those children in the event of the death of the parents. Life can be unpredictable as the last couple of years have shown.

If this is relevant to you or your family then please call us on 02 9699 9877 or email [email protected].