A deceased person’s Will can be challenged for several different reasons.
Claims are commonly brought under specific pieces of legislation, including:
• the Family Protection Act 1995 – where a party claims that they have not been adequately provided for under a Will;
• the Law Reform (Testamentary Promises) Act 1969 – where the deceased person promises to provide for a party in their Will but fails to deliver; and
• the Property (Relationships) Act 1976 – where a claim is brought by the spouse or de facto partner of the deceased.
However, a Will can also be challenged on the basis that the Will-maker did not have the required ‘testamentary capacity’ at the time they made the Will.
Testamentary capacity is the specific ability to make a will, and the law is clear. It is not necessary that the Will-maker be free from any and all mental difficulties or deterioration, and it is possible that they may have testamentary capacity but lack the capacity to do other things, such as manage their business affairs. Put simply, for a Will-maker to have the required capacity, they must understand:
• the nature and effects of making a Will;
• the extent of the property being disposed of under the Will; and
• the moral claims which they should consider in making testamentary dispositions.
Issues of testamentary capacity often arise in cases of Wills made at an advanced age, or while the Willmaker was suffering poor health. However, old age and/or physical health are not determinative of capacity.
Where there is a challenge to capacity the onus of satisfying the Court that the Will-maker had capacity rests on those seeking probate and interested parties can submit evidence in support or opposition of this finding.
Medical evidence is commonly relied upon to prove capacity, and legal practitioners will often require a Willmaker to obtain an assessment before witnessing a Will. The Court may also consider evidence from those who knew the Will-maker well at the relevant time.
If you have had a loved-one pass away and have concerns about their capacity at the time of their Will, consider seeking legal advice. Our team of lawyers at GML are committed to providing all our clients with practical, tailored advice that is timely, accurate and affordable.
The team at GML Lawyers
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