Wills & Estates: Does my elderly parent have “testamentary capacity”?

Will Old Fashioned writting

What is Testamentary Capacity and why is it so important?

Testamentary capacity is the legal term for a person’s mental ability under the law to make a will. A common example where someone may lack capacity is in the case of a person with dementia (depending on its severity).  

Testamentary capacity is important as a person must have testamentary capacity to make a valid will, and any doubt around testamentary capacity can provide opportunity for a will to be challenged. With an aging population, and in some cases significant assets at stake, the question of testamentary capacity becomes all the more important.

The Test for Testamentary Capacity

The leading authority for testamentary capacity is the test set out in a case called Banks v Goodfellow (1870) LR 5 QB 549. The test is comprised of the following questions:

  1. Does the willmaker understand what a will is? That is, do they understand its nature and effect?
  2. Does the willmaker know the nature and the extent of their assets?
  3. Does the willmaker appreciate who might expect to benefit from their will?
  4. Is the willmaker suffering from a “disorder of the mind” or “insane delusions” which might affect the provisions he or she will make in their will?

Simply put, if it’s a yes to questions 1 to 3, and a no to question 4, then the willmaker can be said to have testamentary capacity.

It goes without saying that answering these questions, in reality, may be a lot less straightforward and may provide a lot of room for argument, depending on the evidence.

My parent has dementia. Sometimes they’re okay, other times they’re not – what happens then?

Try to book an appointment when you know they will be “more themselves” or are more likely to have the mental capacity. If your parent is in better shape and clear minded in the mornings, but has trouble in the afternoons, it might be a good idea to try to get an early morning appointment with your lawyer.  Of course, this will not necessarily guarantee that a Court will find that the will is valid under the Banks v Goodfellow test.  If it is possible to organise, it will be advantageous for the will to be witnessed by a medical practitioner who has satisfied himself/herself as to the capacity and understanding of your parent and makes a record of his/her examination and findings.

How is testamentary capacity determined when making a will?

Your lawyer will consider whether a willmaker has testamentary capacity, but ultimately, the question of testamentary capacity may only end up being determined by a Court if the will is one day contested.

You should not be present during the course of legal appointments with your parent, so that the lawyer can independently advise your parent and make their own assessment on capacity and other relevant considerations (which are not mentioned here as they deserve their own articles). The lawyer should assess whether your parent has capacity from a legal perspective, ideally by asking open-ended questions that will assist the lawyer to determine the answers to the Banks test questions.

If the lawyer has any doubt about the willmaker’s capacity, they should request a medical report be obtained. Depending on the overall circumstances, including the willmaker’s health history and the funds available, this could be provided by a General Practitioner, or a specialist Geriatrician.

A medical report and the lawyer’s comprehensive file notes will go to defending any claims of a lack of testamentary capacity that may be made later down the track if the will is contested.

For tailored advice and assistance, please contact our Wills & Estates team at Clelands Lawyers.

Shannon McMenamin

October 2018