The importance of mental capacity in will-making cannot be overstated. Sadly, it’s all too common for family members to argue over the ‘state-of-mind’ of a loved one after they have passed away, leading to contested wills and bitter disputes. The mental capacity of a person can come into question due to aging or declining health, which can have a significant impact on the validity of their will. To ensure that a will is valid and not challenged on the grounds of testamentary capacity, the person making the will must have mental capacity.
One way to avoid conflicts and challenges to a will is by encouraging your loved ones, particularly those who are aging or in declining health, to regularly review their will and estate plan before mental capacity becomes an issue.
The Test of Mental Capacity
The test of mental capacity was established almost 150 years ago in a legal case Banks v Goodfellow. To meet this test, the Will-maker must understand the nature and effect of the will, the extent of the property in the will, the claims they ought to consider, and be free of illogical beliefs that are not in sync with their level of education and surroundings.
The lawyer preparing the will must ensure that they obtain instructions directly from the Will-maker and be satisfied that the Will-maker understands the legal implications of the documents being prepared and signed. This may require obtaining medical and/or psychiatric reports from medical practitioners or geriatricians, which can be expensive and time-consuming, adding additional stress and anxiety to the Will-maker and their family.
What If No Will Is Made?
If no Will is made, the Will-maker will die intestate, and their assets will be distributed in accordance with predetermined formulae set out in the Administration and Probate Act 1958 (Vic). This means that the Will-maker’s assets may not be distributed as they intended, and the distribution of their estate will reflect the moral expectations of society, but not necessarily the wishes of the Will-maker.
Conclusion
The problems of dying without a Will or having an outdated Will can be avoided by making a Will while in good health and of sound mind. Encourage your loved ones to review their Will and other estate planning documents regularly to ensure that their wishes are reflected correctly.
If you or someone you know wants more information or needs help or advice regarding estate planning, please contact us on (03) 9592 3356 or email office@citypacific.com.au or fill in the web contact form here:
Contact
