The Importance of Capacity in Will Making

Article Emily Hancock 06 September 2023

The process of creating a Will is an essential part of responsible financial and estate planning. A Will enables individuals to dictate how their assets and possessions should be distributed after their passing, ensuring that their legacy is managed according to their wishes. However, the validity of a Will depends on the ‘capacity’ of the person making the Will to make sound decisions at the time of its creation.

Understanding Capacity in Will Making

Capacity, in the context of Will making, refers to the mental and legal ability of an individual to understand the nature and consequences of creating a Will. It is essential that the testator (the person who is making the Will) is of sound mind, without any impairments or undue influence that could compromise their ability to make rational decisions about the distribution of their assets.

In order to make a Will, the testator must:

1. Be of age: The testator must be of legal age (18 years or older) to create a valid Will.

2. Appreciate and understand:

  • what a Will is and what it does;
  • what their assets are;
  • the persons that could make a claim on the testator’s estate;

3. Be of sound mind.

4. Execute the Will freely and voluntarily, without any coercion or undue influence from others.


Importance of Capacity in Will Making

There are many reasons why having, or being able to show that the testator had, sufficient capacity when making their Will is important.  Some of these reasons include:

  • Preventing Potential Legal Challenges

If a Will is created by an individual lacking the required capacity, it becomes vulnerable to legal challenges. Heirs or disgruntled parties may contest the Will, leading to lengthy and costly court battles that could deplete the estate and delay the distribution of assets.

  • Honoring the testator's Intentions

A Will represents the testator's final wishes for their estate. By ensuring capacity at the time of Will making, we can be confident that the document reflects the individual's genuine intentions.

  • Preserving Family Harmony

Validating capacity in Will making reduces the likelihood of disputes among family members regarding the division of assets. This can foster a sense of unity and reduce potential strain on relationships after the testator's passing.

  • Protecting Vulnerable Individuals

Capacity assessment acts as a safeguard against unscrupulous individuals who may seek to take advantage of elderly or mentally compromised testators. This protection is crucial in preventing elder abuse and financial exploitation.


Capacity Assessment Process

The process of assessing capacity in Will making varies depending on jurisdiction, but it generally involves an evaluation by a qualified legal professional, sometimes with the support of a medical expert, to determine the testator's mental competence and cognitive abilities.  It is essential to thoroughly document the process, including the professional's observations and conclusions regarding the testator's capacity, to minimise the potential for the Will to be disputed in the future.

Having witnesses present during the signing of the Will can also provide additional evidence that the testator was of sound mind at the time.


What happens if someone doesn’t have capacity?

If someone has been deemed not to have sufficient testamentary capacity and passes away without making an up to date Will, a previous Will could be enforced or their estate may be distributed according to the rules of intestacy (dying without a valid Will).

In the case of someone with an intellectual disability, an application can be made to the Supreme Court to authorise the making of a Will on their behalf.  This Will must be reasonably likely to be the same as that which the person, had they had the capacity, would have made themselves.

Capacity in Will making is a critical aspect of estate planning, ensuring that an individual's testamentary intentions are preserved and executed as intended. By adhering to the necessary criteria for capacity and seeking professional assistance when necessary, individuals can create valid Wills that protect their legacies and provide peace of mind for themselves and their loved ones. For assistance in making a Will please contact the team at CDQ Solicitors. on 02 8556 0130.