Legal capacity is the ability of a person to act under the law. In absence of any contrary evidence, the law presumes a person to be sound and capable of making decisions pertaining to their life.

The Court while assessing the legal capacity takes into account the person’s capacity to understand a given information, make decision based on such information and communicate that decision to another person.

Legal Capacity while Making a Will

While making a Will, a person shall be considered of having the legal capacity or testamentary capacity if the person understands:

What is a Will and the importance of making a Will;

The person’s moral obligation to provide for the person’s surviving spouse, children or any other family member(s); and

That the person is not suffering from any mental illness at the time of signing the Will.

Succession Act 2006

The Succession Act 2006 (the Act) applicable in New South Wales, sets out provisions for persons lacking testamentary capacity to attain Court authorised Wills. Section 18 of the Act enables any person to make an application to the Court for an order authorising a Will or a part of the Will to be made, altered or revoked in specific terms as approved by the Court, on behalf of a person lacking testamentary capacity.

The person making an application may be the spouse or a guardian or any other family member. However prior to making an application to the Court, the applicant must obtain leave of the Court and provide relevant information including:

Reason for making the application;

Evidence showing lack of testamentary capacity of the person on whose behalf, the order is being sought;

Reasonable estimate of the size and character of the person’s estate;

Draft of the proposed Will or revocation or alteration for which the Court’s Order is being sought;

The terms of any previous Will; and

Any other person who might be entitled to claim on intestacy.

The Court will not grant leave unless it is satisfied that:

The person for whom the order is being sought does not have the testamentary capacity to make a Will;

The proposed Will or any alteration or revocation thereof would have been made by the person if the person had testamentary capacity;

It would be appropriate for the Court to make an order;

The applicant for leave is a befitting person to make the application;

Adequate steps have been taken to allow representation of all persons having legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is being sought.

The Will so made or altered under Section 18 of the Act should be in writing and signed by the Registrar and should contain the seal of the Court. In this regard “Registrar” means a person who is:

Appointed in accordance with Section 120 of the Supreme Court Act 1970; and

Nominated by the Principal Registrar of the Court.

Section 25 of the Act further empowers the Court to make an order whereby the person lacking testamentary capacity should be separately represented in proceedings before the Court as it may deem fit.

Minors Power to Make, Alter or Revoke a Will

Section 16 of the Act empowers a Court to make an order authorising a minor to make or alter a Will in specific terms as approved by the Court or revoke a Will or any part thereof. An application for an order under this Section may be made either by the minor or any person acting on behalf of the minor. However before making any such order, the Court must be satisfied that:

The minor understands the nature and effect of the proposed Will or alteration or revocation of the Will or any part thereof;

The proposed Will or alteration or revocation of the Will or any part of the Will reflects the minor’s intention accurately; and

It is reasonable in all the circumstances for the Court to make an order.

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Special Disability Trusts – What Are they and How Can they Assist uou
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Does A Person Have Capacity To Make A Will?
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