And it's all to do with whether you have a sound mind.
In Australian law, for a person to make a valid will, it must:
• be in writing
• signed in front of two witnesses
• made by a person over the age of 18
• made by a person of sound mind, memory and understanding
What does it means for a person to have ‘sound mind, memory and understanding’ or in legal terms, testamentary capacity?
What is Testamentary Capacity?
For someone to execute a valid will, they must:
• understand the nature and effect of a will
• they must understand what a will is and what it is used for
• know the nature and extent of their property;
• they must know what assets they own
• comprehend and appreciate the claims to which they ought to give effect;
• they must know who they’re leaving their estate to, including who might have a legal claim to their estate
• are not affected by delusions that influence the disposal of their assets at the time they are making their will.
• they must not suffer from a disorder of their mind which influences the way they make their will.
A Case Study
Alison was the oldest child in her family and had three younger brothers. They enjoyed a typical sibling relationship as they grew up and older, even through the loss of both parents. Alison suffered from mental illness most of her life and had an extensive psychiatric history. One of the features of her illness was paranoia and delusion, in particular towards her three brothers whom she was convinced were involved in a conspiracy against her.
As she approached middle age, Alison sadly committed suicide. Her will reflected her wishes that nothing go to her brothers due to the conviction that they were conspiring against her.
The brothers contended that Alison did not have testamentary capacity when she signed her will because she suffered from an illness that influenced the disposal of her assets— in this case, mental illness with symptoms of paranoia and delusion.
In making its decision, the court used Alison’s extensive psychiatric history to make a decision, determining that her mental illness had prevented her from making a valid will and that she had lacked testamentary capacity. The will was deemed invalid and her assets disposed of according to the rules of intestacy (or as if she had died without a will).
However the presence of a mental illness does not automatically mean a will is invalid.
Compare the above case study to Thomas, who also suffered a mental illness with features of delusion. In his case, he was convinced that he was being followed by an FBI agent. He contended that the agent followed him day and night, every day of his life. Psychiatric assessment concluded that the FBI agent didn’t exist and was a delusional symptom of Thomas’ mental illness.
Yet when he died, his will was upheld as valid.
The difference in this case is that the mental illness Thomas suffered from didn’t influence the disposal of his assets in the same way that Alison’s mental illness did.
Who determines whether somebody has testamentary capacity?
In this area of the law, medical opinion and legal opinion merge and both will be considered by a court when making a decision. Other opinions might also be taken in account, such as those of social workers or allied health professionals.
It is considered best practice for the lawyer overseeing the completion and execution of the will to test for capacity. The lawyer should make sufficient inquiries and keep records of his or her knowledge, information and belief that the will-maker had testamentary capacity at the time of signing the will. Equally, the lawyer should make reference of any circumstances or suspicions in which he or she believes testamentary capacity might be diminished.
A specialist in Estate Planning will adhere to best practice and keep detailed notes.
It’s also important to remember that you never know when you’ll lose capacity so it’s best not to put off making a will. Loss of capacity can happen quickly, in the case of a stroke or accident, or slowly as dementia advances. But once capacity is lost, so is the ability to make a will.
We always recommend seeing a specialist wills and estate planning solicitor.
Courts will take into account the opinions of medical professionals, allied health professionals and social workers, but best practice requires the lawyer overseeing the completion and execution of the will to test for testamentary capacity and keep detailed records.
Bryan Mitchell is an Accredited Specialist in succession law (wills and estates including estate planning).