CAPACITY TO MAKE A WILL
Anyone over the age of 18 can make a will, however people who make will must have testamentary capacity. This means they must be of sound mind, memory and understanding at the time of making the will.
A person is regarded as having the required capacity if they:
- Understand the nature and the effect of a will
- Know the nature and extent of their property
- Comprehend and appreciate the claims to which they ought to give effect
- Are not affected by delusions that influence the disposal of their assets at the time they are making their will.
SICK OR ELDERLY INDIVIDUALS
A will can be challenged on the grounds that the will-maker did not have sufficient capacity.
This arises most frequently when the will-maker is or extremely old when they make or change their will. If possible, you should make your will while you are still in good health. At GMH Legal we recommend that you do not put it off until you are very old or sick.
If the issue of capacity is likely to arise, you should obtain evidence of your testamentary capacity in the form of a medical certificate from your doctor or health worker.
INDIVIDUALS WITH INTELLECTUAL DISABILITY
Testamentary capacity may also be an issue for people with intellectual disability. While evidence of capacity is not legal required, it may be desirable in some cases where the disability is severe or if there is a likelihood that the will could be challenged later on.
If it is clear that the person does not have the testamentary capacity to make a will, the Succession Act 2006 now provides for court authorised wills for those lacking testamentary capacity. Upon application, the Court may authorise that a will be made, altered or partially/fully revoked on behalf of a person lacking capacity either though immaturity or a particular incapacity.
The person on behalf whom the application is made must be alive at the time the order is made and, upon the execution of the will, the later must be deposited with the Registrar.
If a person who has assisted the will-maker to draw up a will also stands to gain a great deal from it, that person may have to prove to the Court that there was no trickery, pressure, force or even fear involved in the making of the will.
The Court will overturn a will on the ground of undue influence where it is satisfied the will-maker’s mind was coerced to such an extent that the resulting will was contrary to the will-maker’s real intentions.
The Court may be especially suspicious about undue influence if there has been obvious persuasion by the person who drew up the will, especially where that person would benefit from it.
It can be difficult to prove undue influence unless there were witnesses present when it happened.
In relation to a lack of testamentary capacity
Under Section 18(1) of the Succession Act 2006 (NSW) , a Court may on application by any person, make an order authorising:
- A will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity; or
- A part of will to be revoked on behalf of a person who lacks testamentary capacity.
Please note that the Court will not make such order unless the person in respect of whom the application is made is alive when the order is made.
To apply for an order to be made under section 18 of the Succession Act, the applicant must give the following information to the Court:
- A written statement of the general nature of the application and the reasons for making it;
- Satisfactory evidence of the lack of testamentary capacity of the person
- A reasonable estimate of the size and character of the estate
- A draft proposed will, alteration or revocation for which the applicant is seek the Court’s approval
- Any evidence available of the person’s wishes
- Any evidence of the likelihood of the person acquiring or regaining testamentary capacity
- Any evidence of any persons who might be entitled to claim on the intestacy of the person
- Any evidence of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person
- Any evidence of a gift for a charitable or other purpose that the person might reasonably be expected to make by will
- Any other facts of which the applicant is aware that are relevant to the application
In relation to the rectification of a will to carry out the testator’s intentions
Under Section 27 of the Succession Act 2006 (NSW), the Court may make an order to rectify a will if satisfied the will does not carry out the testator’s intention because of:
- A clerical error; or
- The will does not give effect to the testator’s instructions.
Please note that if you wish to make an application under section 27 of the Succession Act, you must do so within 12 months of the death of the testator.
FAMILY PROVISION CLAIM
If you believe that you have not been properly provided by the decease, you can file an application for a family provision claim.
Who is eligible to make a Family provision claim?
According to chapter 3 of the Succession Act 2006 (NSW), those eligible to apply include:
- Wife or husband of the deceased person at the time of death
- Person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partner)
- A child of the deceased person
- A former wife or husband of the deceased person
- A person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
- A grandchild who was at any particular time wholly or partly dependent on the deceased person
- A person with whom the deceased person was living in a close personal relationship at the deceased person’s death
For more information on filing an application for a Family provision claim, please refer to the ‘Family provision claim’ section of the GMH Legal website.
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