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Testamentary Capacity

Testamentary Capacity

testamentary capacity

The question of the capacity of a testator (person making a will) is often questioned where a will makes little or no provision for persons who would ordinarily have expected an interest. It is often a child of the testator.

A testator is free to leave their estate to whomever they choose but courts have acknowledged that there comes a point where the omission is seen as evidence of a mental defect in the testator.

Where a testator is found to have lacked testamentary capacity at the date of the will, the will is invalid.

Whether the testator had testamentary capacity is a question for the court. Evidence is called by those wishing to have the will followed and those seeking to establish that the testator lacked testamentary capacity and that the will is consequently invalid. Lay and professional evidence may be called and, if a doctor had been consulted by the testator during their lifetime, the particular doctor’s opinion may be helpful to the court.

The court will also consider the history of the testator’s lifetime and compare any previous wills made. It will consider the testator’s relationships with the beneficiaries and those who are seeking to establish a lack of testamentary capacity. It will consider the testator’s habits as a sudden change may explain a lack of testamentary capacity. Comments made by a testator immediately before signing a will may also be relevant to proving the state of the testator’s mind.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.