Making a will is one of the most important decisions a person can make, because it determines what happens to everything they have worked for and who they provide for after they are gone. For a will to be valid, the person making it must have what the law calls testamentary capacity. Understanding what this means, and why it matters, can help protect your wishes and give your family peace of mind.

What does testamentary capacity mean?

Testamentary capacity means that a person has the legal and mental ability to make a valid will. In simple terms, the person making the will must understand what a will is, what they own, and who may reasonably expect to receive something from their estate. These principles are well established in law.

You do not need perfect memory or perfect health

In New South Wales, a person does not need to have a perfect memory or be in perfect health to make a will. A person can have some memory loss, be elderly, or have a medical condition and still have testamentary capacity. What matters is whether they understand the important decisions they are making at the time they make the will.

What a will-maker needs to understand

A person making a will should generally be able to understand:

• that they are making a will, and that the will decides what happens to their property after they die;
• the general type and value of the property they own, such as a house, bank accounts, shares, superannuation, or personal items;
• the people who may expect to receive something from their estate, such as a husband, wife, partner, children, or dependants;
• the effect of leaving someone out of the will, or giving one person more than another; and
• the reasons for the decisions they are making.

How this works in practice

A few examples help show how testamentary capacity can apply.

Consider a person aged 82 who sometimes forgets names or appointments, but still understands that they own a home, have money in the bank, and have three children, and who wishes to leave everything equally to those children. That person is likely to have testamentary capacity, even with some memory problems.

By contrast, a person with advanced dementia who cannot remember that they own a house, does not recognise their children, and cannot explain what a will does may not have testamentary capacity.

Capacity can also fluctuate. A person with early-stage Alzheimer’s disease may be confused on some days but clear on others, able to talk about their family, their home and their wishes. If they make a will on a day when they understand these matters, they may still have testamentary capacity.

Finally, consider a person who decides to leave more to one child because that child has cared for them for many years. They understand that their other children may be upset, but they can clearly explain their reasons. This may support the view that they have testamentary capacity.

Why testamentary capacity matters

Testamentary capacity is important because a will can be challenged after a person dies if there are concerns that the person did not understand what they were doing. A challenge of this kind can cause stress, delay, and legal costs for the family, often at an already difficult time.

When do concerns about capacity arise?

Concerns about capacity often arise when:

• the will-maker is elderly or seriously ill;
• the will-maker has dementia, memory loss, or another cognitive condition;
• the will is very different from an earlier will;
• one family member receives much more than others; or
• someone close to the will-maker appears to be pressuring or influencing them.

Keeping clear records can help

If there may be questions about capacity, it helps to keep clear records. This may include notes of the will-maker’s instructions, the reasons for their decisions, and, where appropriate, a medical assessment. These steps can help show that the will-maker understood their choices when the will was made, which can make a later challenge far less likely to succeed.

Get advice when it matters most

If you are preparing a will, or you are concerned about a loved one’s capacity to make one, sound advice at the right time can protect their wishes and spare your family difficulty later. Bateman Battersby has helped Western Sydney families protect their legacies since 1991.

Contact our experienced team to discuss your situation.