Paul Evans
13 March 2013

Capacity to make a Will

Paul Evans


Tel: 02 9233 9084

Mob : 0466 889 754


Estate Planning, Trusts, Probate and Estate Litigation

Charities and Not-For-Profits

Dispute Resolution

A Will is a legal document setting out how a person wants his/her assets to be distributed on death. Anyone over the age of 18 can make a Will provided they have capacity. A person will have the necessary capacity if they:

  • know what a Will is;
  • know in general terms the amount and type of property they are disposing of; and
  • understand the moral claims to which he/she should give effect when deciding to whom to leave their property.

A Will maker must also know and approve of the contents of their Will. A Will can be challenged on the grounds that the Will maker did not have sufficient capacity when signing the will. This arises most frequently where the Will maker is ill, for example, in hospital on medication or elderly and suffering from dementia.

Where there is the likelihood of the Will being challenged on the Will maker’s death on the basis of lack of capacity, it is important to obtain contemporaneous medical evidence from the Will maker’s treating doctor or in some cases a geriatrician confirming he/she has capacity.

A person under the age of 18 who is married or contemplating marriage can make a Will provided they have testamentary capacity as outlined above.

Where a person lacks testamentary capacity, the Court can in some circumstances make a Will for him/her. For more information, refer to our article “Statutory Wills can easily be overlooked“.

If you require any further information please contact Paul Evans.

Latest Firm Published Insights