Do I have the capacity to make a valid Will?

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Deciding to make a Last Will and Testament can be a difficult decision for people to make simply because it is hard to face their own mortality. However, a great deal of security can come from knowing that you have planned to distribute your assets to those you love. By doing so, you can make your passing easier for all those who love you. But before you can plan a Will to distribute your estate in a manner that suits you, you must be of sound mind.

What does it mean to be of sound mind to create and put your signature to a legal document?

In New South Wales Australia, the law requires that anyone who drafts and signs a Will must be of sound mind, memory and understanding. As the testator of your Will you must be able to show that you;

  • Have a full and complete understanding of the content of the Will.
  • Must be able to demonstrate that you know the effect of you Will.
  • Have a clear understanding of the extent and type of property you are distributing.
  • Must be able to acknowledge and comprehend who you are distributing your assets to and why.
  • Provide a clear explanation if you are leaving a pivotal person out of your Will.

During the course of drafting your Will with your solicitor, you will be asked various questions that will help the solicitor determine if you are of sound mind to draft and sign your Will. If you are able to answer these inquiries with clarity and sound judgment, it is highly likely you will be considered of sound mind to create your Will.

What types of physical, mental or emotional deficits could affect a finding that a testator is of sound mind?

If a person is physically disabled but otherwise mentally and emotionally well, they will not likely be found lacking in sound mind to draft and sign their Will.

However, there are some mental and emotional conditions that could cause a person to be lacking sufficient capacity to create a Will. These ailments include;

  • A form of intellectual disability that makes it difficult or impossible for the person to understand the nature and extent of their estate.
  • Senile Dementia; in the instance that a person cannot remember the content of their estate, the value of their estate, or the persons to whom they might be distributing it to, they are likely to be found lacking in the required capacity to make a will.
  • Delusional; if a person is lacking an understanding of the value of their assets or their connection to the people they might be distributing their wealth to, then they may lack sufficient sound mind to make such distributions.

What are the options available for a person who would like to make a Will, but is in a situation that causes their capacity to do so, to be questioned?

For those who may be living with a mild form of intellectual disability, or in the early stages of a disease such as Alzheimer’s or Senile Dementia, or suffering from a chronic mental illness, there are options that may still allow for the person to draft a valid and enforceable Will. These options include;

  • Drafting the document during a time of lucidity.
  • Seeking assistance from a trusted family member who is legally appointed to assist the disabled person in drafting the document.
  • Providing an affidavit from a reputable and trusted source, such as a doctor or therapist, that states that at the time of the drafting of the will the testator was of sound mind.

By recognizing that your capacity to create a Will could be questioned, and by providing evidence that at the time you drafted your Will you were of sound mind, you can minimize and/or even eliminate the likelihood that someone could challenge your Will after your passing. However, this type of forethought requires the assistance of a solicitor who can make sure that the witness and/or evidence you are using to support your capacity to enter into a Last Will and Testament, is valid, credible and legally sufficient.

Since it is highly encouraged that all persons who have sufficient capacity to make a Will be allowed to do so, we recommend that you take the time to reach out to a trusted solicitor for assistance. By doing so the process can be properly discussed and reviewed, while also making certain that all of the requirements for a valid and legal Last Will and Testament have been met.

In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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